FMLA FAQs for cold and flu season

While most employers know that a simple case of a cold or flu doesn’t generally qualify for leave under the federal Family and Medical Leave Act (FMLA), they might have questions regarding such conditions. Here are a few Q & As to help clarify.

Q: Employees will occasionally go to their doctor if their cold or flu lasts more than 3 days. The doctor might prescribe a medication (which the patient may or may not fill) in case there is a bacterial infection. The regulations state that, ordinarily, unless complications arise, the common cold and flu aren’t serious health conditions for purposes of FMLA. Can a cold or the flu ever be a serious health condition for purposes of FMLA?

A: Yes, the cold or flu can be a serious health condition under the FMLA if the individual is incapacitated for more than 3 consecutive calendar days and receives continuing treatment by a health care provider, as defined in the regulations. It can also be an FMLA serious health condition if the individual is hospitalized.

Q: What if the employee telephones the doctor but doesn’t actually see the doctor for an examination?

A: If an employee who has the flu only telephones the doctor but isn’t seen or examined by the doctor, those circumstances wouldn’t qualify as “treatment.” Treatment means an examination to determine if a serious health condition exists, evaluations of the condition, and actual treatment by the healthcare provider to resolve or alleviate the condition. A telephone conversation isn’t an examination, but a televisit is. A televisit must, however, involve video.

Q: What if the doctor prescribes medication only in case a cold or flu turns into something more serious? What if the employee doesn’t have the prescription filled or doesn’t follow the doctor's orders?

A: A prescription that is given in case a cold or flu develops into something serious raises the question of whether the existing condition is an FMLA serious health condition. In all likelihood, the employee hasn’t yet suffered the “complications” that would qualify the illness as an FMLA serious health condition. An employee who doesn’t follow the doctor's instructions is probably not under a “regimen of continuing treatment by or under the supervision of the health care provider” per the FMLA regulations.

Q: What if the absence is for strep throat or an ear infection, and the employee goes to the doctor and gets a prescription for an antibiotic, is that a serious health condition?

A: If either strep throat or an ear infection results in an incapacity of more than 3 consecutive calendar days and involves continuing treatment by a health care provider (which can include a course of prescription medication like an antibiotic), the illness would be considered an FMLA serious health condition.

The name of a condition isn’t the determining factor. A cold or the flu is a serious FMLA health condition if it meets the FMLA’s definition. Employers may ask for a certification supporting the need for leave, and it should indicate whether the condition meets the definition.

Key to remember: Employers shouldn’t base the determination of whether an employee has an FMLA serious health condition on the name of the condition or related procedure. They should base the determination on whether the condition meets the FMLA’s definition of a serious health condition.