Flu Covered by FMLA

The Family and Medical Leave Act ("FMLA") allows a covered employee up to 12 weeks of unpaid leave because of a "serious health condition." Minor ailments are not covered by the FMLA. The regulations explain:

Ordinarily, unless complications arise, the common cold, the flu, ear aches . . . do not meet the definition of a serious health condition . . .

Nonetheless, the Fourth Circuit Court of Appeals recently ruled that an ordinary flu can be a serious health condition under the FMLA.

The case involved "a chronically absent employee" who had received her "final letter of warning" for poor attendance. She then missed work to see her doctor who said she had the flu. The doctor saw her again three days later and found that she still had the flu although she had improved. The doctor excused her from work for four days. The employee was subsequently fired for excessive absenteeism. She sued claiming that her last absence was protected under the FMLA.

The court ruled that the employee had been unlawfully fired and was entitled to back pay and attorneys' fees because her condition was covered by the FMLA.

The court reasoned that while "ordinarily" the flu was not a serious health condition, the employee's flu was sufficiently serious in this case to be protected by the FMLA. The regulations define a serious health condition as one that incapacitates the employee (prevents her from working) for "more than three consecutive calendar days" and involves "treatment two or more times by a health care provider." Because the employee saw her doctor twice and he excused her from work for 4 days, she met the definition of a serious health condition.

The lesson of this case for employers is that even an ordinary illness can be a "serious health condition" under the FMLA. Employers need to consider each episode of an employee's illness carefully to determine whether or not it is protected by the FMLA.