A serious flu outbreak could incapacitate employers. Plus, the season will lead to more confusion and questions over whether a flu or common cold can rise to the level of “serious health condition” that qualifies for job-protected FMLA leave.
FMLA regulations state that, “Unless complications arise, the common cold (and) flu … do not meet the definition of a serious health condition and do not qualify for FMLA leave.”
But pay attention to those first three words… “unless complications arise.” If the employee’s bad flu bug forces him to be incapacitated for more than three days, and he sees a doctor and receives an antibiotic, that employee could meet the qualifications to be eligible for FMLA leave (see full explanation below).
Bottom line: When an employee’s cold or flu goes beyond “normal,” you’ll need to evaluate the condition individually to determine whether it’s a “serious” FMLA-qualifying condition.
In such cases, the FMLA certification form is your best friend, as is your ability to request a second opinion if an employee delivers an FMLA certification that you question.
Recent case: Patricia Singletary was frequently written up for absenteeism problems at work. Finally, the company warned her that one more absence would mean termination.
Soon after, Singletary was at work when she told her supervisor that she “might be contagious” with a viral illness. The boss sent her home. It turned out Singletary had a run-of-the-mill illness, not anything serious. The company fired her.
Singletary sued, alleging her illness was an FMLA-qualifying serious condition.
The court disagreed because there was no proof she couldn’t work. Whether she was contagious or not wasn’t relevant. If that were the measure, everyone with a cold would be eligible for FMLA leave. (Singletary v. Stops, No. 6:09-CV-1763, MD FL, 2010)