Could a Bad Case of the Flu Fall Under the FMLA?

While the 2013–2014 influenza season got off to a slow start, the illness is now becoming widespread in many parts of the country, including both New York and New Jersey. Given that the late “peak” flu season is expected to continue well into May, employers should expect sick calls to continue for the foreseeable future. When severe outbreaks develop, companies understandably wonder whether a bad case of the flu meets the requirements of a “serious health condition” under the Family Medical Leave Act (FMLA). Like many employment questions, the answer depends on the circumstances. While the Department of Labor’s FMLA guidance lists the flu, along with the common cold, upset stomach, and headaches, as examples of conditions that generally do not qualify for FMLA leave, employers must analyze each claim to determine if it meets the following definition of a “serious health condition”: An illness, injury, impairment, or physical or mental condition that involves:

• Inpatient care in a hospital, hospice, or residential medical care facility; or
• Continuing treatment by a health care provider.

In the most serious cases of flu, such as H1N1, hospitalization may be required. However, most claims fall under the second prong of the definition. To qualify as “continuing treatment,” the employee must be incapacitated for more than three consecutive days and seek continuing treatment from a health care provider. Treatment by a health care provider must be an in-person visit to a health care provider, and it must take place within seven days of the first day of incapacity. With regard to “continuing treatment,” examples include a course of prescription medication, such as an antibiotic. However, the Department of Labor advises that taking of over-the-counter medications, bed-rest, drinking fluids, and other similar activities that can be initiated without a doctor’s visit do not qualify as continuing treatment for purposes of FMLA leave. As highlighted above, the process for evaluating an FMLA claim can be both law and fact intensive. Accordingly, employers may want to seek the advice of experienced legal counsel. If you have any questions about the FMLA or would like to discuss your company’s sick leave policies and procedures, please contact me, Ramon Rivera, or the Scarinci Hollenbeck Labor and Employment Law attorney with whom you work.