There’s one passage in the FMLA rules that’s particularly vexing for employers.  

Here it is:

… conditions that ordinarily, unless complications arise, would not meet the regulatory definition of a serious health condition and would not, therefore, qualify for FMLA leave: the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc.

If you conducted a search for “FMLA” and “the flu,” or “common cold” you’d likely find this excerpt plastered all over the Internet.

The problem is, after reading this part of the rules a person might assume that flu- or cold-related call-outs do not trigger FMLA obligations on the employer’s part. That is a dangerous assumption.

The reality is, any illness — the flu, common cold or otherwise — can trigger FMLA obligations as long as it meets the FMLA’s definition of a “serious medical condition.”

Serious medical condition defined

The DOL defines a serious medical condition as an illness, injury, impairment, or physical or mental condition that involves one or more of the following:

  • a period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility
  • a period of incapacity requiring an absence of more than three calendar days from work, school, or other regular daily activity that also involves continuing treatment by — or under the supervision of — a healthcare provider
  • a period of incapacity due to pregnancy or prenatal care
  • a period of incapacity — or treatment therefore — resulting from a chronic serious health condition (e.g., asthma, diabetes, epilepsy, etc.)
  • a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective (e.g., Alzheimer’s, stroke, terminal diseases, etc.), or
  • absences to receive multiple treatments (including any period of recovery therefrom) by, or on referral by, a healthcare provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (e.g., chemotherapy, physical therapy, dialysis, etc.).

When FMLA would be triggered

The most likely scenario under which a flu- or cold-related absence would trigger FMLA obligations is when an employee, having been absent for at least three days, visits a doctor and is prescribed a regimen of medication — like antibiotics.

Under this scenario, the employee has a serious medical condition.

When FMLA would not be triggered

Two scenarios under which an employee would not be deemed to have an FMLA-obligation-inducing serious medical condition:

  • an employee telephones a doctor but does not actually see a doctor for an examination (telephone conversations do not count as “treatment” under the law), and
  • an employee visits a doctor and is told to take over-the-counter medications or get plenty of bed rest (taking over-the-counter medications, bed rest and other similar activities are considered actions that can be initiated without seeing a healthcare provider, so they are not considered a regimen of continuing treatment).

So what’s an employer to do?

To be on the safe side, if an employee is absent for three consecutive days, act as though the employee has a condition that may be covered under the FMLA. That means issuing the employee an FMLA notice and requesting a certification.

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