From the Hotline: Flu and FMLA

Question: Is the common flu considered a serious health condition under the Family and Medical Leave Act (FMLA)?

Answer: Under specific circumstances, the common flu may be considered a serious health condition under the FMLA. According to the Department of Labor, serious health condition means an illness, injury, impairment, or physical or mental condition that involves any of the following:

  • Any 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 absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider.
  • Any period of incapacity due to pregnancy, or for prenatal care.
  • Any period of incapacity (or treatment therefore) due to 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.).
  • Any absences to receive multiple treatments (including any period of recovery therefrom) by, or on referral by, a health care 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.).

The employer may require the employee to submit a certification from a health care provider to support the employee’s need for leave protection under the FMLA when dealing with a serious case of the flu. An employer may, at its own expense, require the employee to obtain a second medical certification from a health care provider. The employer may choose the health care provider for the second opinion, except that in most cases the employer may not regularly contract with or otherwise regularly use the services of the health care provider. If the opinions of the employee’s and the employer’s designated health care providers differ, the employer may require the employee to obtain certification from a third health care provider, again at the employer’s expense. This third opinion shall be final and binding. The third health care provider must be approved jointly by the employer and the employee.

Additional Resources:
Wage and Hour Division Opinion Letter FMLA-87
Wage and Hour Division – Pandemic Flu and the Family and Medical Leave Act: Questions and Answers