Human Resources: Do Flu Sufferers Qualify for FMLA?

Employers always know when flu season arrives - they see an increase in employee sick days. But what about increases in FMLA leave?

The Family and Medical Leave Act is intended to apply to situations where an employee has a serious health condition. The flu is certainly no picnic, but does it justify an FMLA claim?

Well, yes and no, according to the U.S. Department of Labor. In a December 12, 1996, opinion letter, the agency said colds and the flu don´t ordinarily qualify as serious health conditions. But it went on to explain that in cases where the illness meets the law''s "serious health condition" test - i.e., causing incapacitation for more than three days and requiring a regimen of continued medical treatment - it should be regarded as serious, thereby triggering FMLA coverage.

AT&T loses termination case over flu
In the case of Miller v. AT&T (No. 2:98-0808, Southern District of West Virginia, August 9, 1999) AT&T learned the hard way that the flu can be a serious health condition.

Employee Miller left work early one day because of illness and thereafter was out of work for a week with a high fever and other flu-like symptoms. Two days into her absence she went to see a doctor who diagnosed a severe case of flu. The doctor saw her once more before her return to work.

Upon her return, Miller presented a completed medical certification form in which her doctor certified that she had a serious health condition, provided the dates of her illness, and stated that she had refrained from working on doctor´s orders. AT&T, however, found the certification inadequate and decided that the flu did not constitute a serious health condition.

Two days later, Miller was terminated for unsatisfactory performance. She sued, claiming a violation of the FMLA.

The court agreed with Miller, finding that her doctor had completely filled out the employer-provided form and that the employer should have chosen another remedy if it questioned the validity of the doctor´s conclusion - namely, request a second opinion. The court found that AT&T´s termination of Miller was a violation of her FMLA rights.

''Serious health condition'' defined
Under FMLA a "serious health condition" means an illness, injury, impairment, or physical or mental condition that involves either:

Any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical-care facility, and any period of incapacity or subsequent treatment in connection with such inpatient care; or

Continuing treatment by a health care provider which includes any period of incapacity (i.e., inability to work, attend school or perform other regular daily activities) due to:

A health condition (including treatment therefore, or recovery therefrom) lasting more than three consecutive days, and any subsequent treatment or period of incapacity relating to the same condition, that also includes: treatment two or more times by or under the supervision of a health care provider; or one treatment by a health care provider with a continuing regimen of treatment; or

Pregnancy or prenatal care. A visit to the health care provider is not necessary for each absence; or

A chronic serious health condition which continues over an extended period of time, requires periodic visits to a health care provider, and may involve occasional episodes of incapacity (e.g., asthma, diabetes). A visit to a health care provider is not necessary for each absence; or

A permanent or long-term condition for which treatment may not be effective (e.g., Alzheimer''s, a severe stroke, terminal cancer). Only supervision by a health care provider is required, rather than active treatment; or

Any absences to receive multiple treatments for restorative surgery or for a condition which would likely result in a period of incapacity of more than three days if not treated (e.g., chemotherapy or radiation treatments for cancer).