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Flu and Cold Season Woes: Can My Employees Take FMLA/ADA Leave?

It’s that time of year when it seems like everyone you know has either the flu or a bad cold. The workplace can quickly become a hotbed for influenza and rhinovirus to incubate and spread among coworkers. Employees have hopefully saved or accrued sick leave for the almost inevitable instance they become sick. But should employers be considering other forms of leave for when an employee must take time off to deal with and recover from the flu or a cold? The short answer is yes, employers should review any employee’s request for leave to determine if the employee qualifies for FMLA or ADA leave.

First, let’s look at the requirements for the Family and Medical Leave Act (“FMLA”) leave. Under FMLA, “eligible employees” may take leave for, among other reasons, their own serious health conditions that make them unable to perform the essential functions of their position, or to care for immediate family members (i.e., spouse, child, or parent) with serious health conditions. FMLA defines serious health condition as “an illness, injury, impairment, or physical or mental condition that involves:

1) inpatient care in a hospital, hospice, or residential medical care facility; or

2) continuing treatment by a health care provider.”

The first criterion is a no-brainer. Eligible employees that are hospitalized are qualified to take FMLA leave. The analysis gets trickier when you consider the second criterion. The legislative history of FMLA states that the meaning of serious health condition “is broad and intended to cover various types of physical and mental conditions” and “is intended to cover conditions or illnesses that affect an employee’s health to the extent that he or she must be absent from work on a recurring basis or for more than a few days for treatment or recovery.” Similar standards apply to a child, spouse, or parent of the employee-caregiver who is unable to participate in school or in regular daily activities. However, the legislative history also states that the term “is not intended to cover short-term conditions for which treatment and recovery are very brief” and “minor illnesses which last only a few days and surgical procedures that typically do not involve hospitalization and require only a brief recovery period.”

When looking at these definitions, it’s clear that typically an employee with the common cold or flu would not qualify for FMLA because the illness does not involve lengthy time off or hospitalization. But, employees that are out for significant periods of time due to the flu or cold at the direction of his or her healthcare provider complicate the analysis. Fortunately, the regulations for FMLA provide some guidance. The regulations provide a “three day incapacity” rule and “regimen of continuing treatment” definition for employers to consider. The rule, when combined with the definition, provide that (i) if an employee is unable to work or perform other regular daily activities due to a serious health condition (remember, this means continuing treatment by a health care provider) for more than three (3) calendar days, and (ii) the employee receives continuing treatment, like a visit to a healthcare provider followed by a regimen of prescription drugs, the employee has a “qualifying serious health condition” for purposes of FMLA. Over the counter medications or bedrest do not count as continuing treatment.

The Americans with Disabilities Act (“ADA”) similarly does not apply to temporary or short term illnesses that do not substantially limit a major life activity. However, it can apply if the flu or cold causes an employer to “regard” that person as disabled. For example, if the employer requires an employee to take leave due to the employee having the flu, that person’s job would be protected by the ADA because the employer has “regarded” the employee as having a disability. It is also possible that the flu or cold could cause other complications that require hospitalization or impact major life activities in such a way that triggers applicability of the ADA. Employers should be especially cognizant of ADA requirements as to new employees that may not yet be eligible for FMLA, or that have not accrued or have exhausted paid time off.

If you have questions about the applicability of FMLA or ADA, please do not hesitate to contact an Employment Attorney at Stock and Leader.

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