The flu is spreading like wildfire! So, is a flu-caused absence protected under the Family and Medical Leave Act (FMLA)?
Calling Out Sick
Here’s a typical scenario:
Employee is off for four days. He calls in and says he has the flu. He returns to work. The company has an absence control policy.
The question: Are the absences FMLA-protected, in which case they shouldn’t be counted against the employee’s absence allotment? If they are protected yet counted, then any discipline for a policy violation is an FMLA violation!
Establish a Checklist
Here’s an idea: Provide the employee with an FMLA certification to complete and return to you.
Understand what triggers FMLA protection:
- A period of incapacity of more than three days in a row because of the flu. Incapacity doesn’t mean that the employee must hide in their bedroom with the blinds closed for three days or more. So don’t go ballistic because a supervisor sees the employe at the grocery store (maybe they are picking up medicine). It’s incapacity involving an ability to actually work.
- Plus one of these two: seeing a medical professional for the flu two or more times in a 30 day period after the first day of incapacity; or seeing a professional for the flu one time but within seven days of the first day of incapacity and being given a course of treatment that the employee must follow (“Here is a prescription for XYZ. It will help with the flu. Take these as directed.”)
Understand what is not covered by the FMLA:
- A professional says, “Let’s go the old school route—stay at home, get plenty of fluids, take aspirin, and rest.” The employee doesn’t need to see a professional for advice that their bartender or mother can give them.
- The Department of Labor (DOL) takes the position that a telephone call to a professional is not a treatment. But a live televisit—where a professional sees patient and a patient sees a professional—is a treatment. There still must be an actual observation by the professional leading to a diagnosis.
Note: Having strep throat and taking an antibiotic—on their own—are not FMLA-covered. The threshold inquiries noted above must still be satisfied.
Bottom Line
Look, I know that not having an employee at work is a hassle for supervisors. I get it, but remember that if the time comes for them to take FMLA leave, they will be grateful to have it available. Talking about the flu, here are some ideas:
- Be sure to cross-train so that if one area of the company is hard hit (say, shipping), then others (say, from purchasing) can fill in. Have a plan.
- If you want to have employes take flu shots, make it one part of an overarching health initiative, not a stand-alone.
- Don’t worry about debating the finer points of FMLA jurisprudence in determining whether the absence is protected. When in doubt, give FMLA protection. Do you really want to be the test case?
Michael P. Maslanka is a professor at the UNT-Dallas College of Law. You can reach him at michael.maslanka@untdallas.edu.