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Days off for flu may qualify under the Family Medical Leave Act

With flu season in full swing, even here in Los Angeles, questions of whether time off from work for the flu is covered under the Family Medical Leave Act are particularly relevant. The answer isn’t a simple yes or no. Although the FMLA lists the flu under illnesses not covered, a key caveat in the language is “unless complications arise.” When they do, employers may be required to provide medical leave under the FMLA.

In relatively rare cases, a person can have such a bad case of the flu that he or she ends up in the hospital. Under the FMLA, that, in all likelihood, would be covered. The same is generally true when people are so sick that they need to see a doctor or require continued treatment for a time. However, if you are going to ask for medical leave under the FMLA, be prepared to get written documentation from your physician.

A woman who sued the employer who terminated her for excessive absences contended that because two of those absences were for the flu, they were covered under the FMLA. As such, she believed those absensces should not count against her. However, because she provided no evidence that she saw a doctor or that the second absence she cited was related to her original flu, a court sided with her employer, ruling that the company had a right to fire her.

Many employers mistakenly believe that the flu is not a valid condition for a medical leave under the FMLA. That means that employees who are truly sick for an extended period of time can end up using a considerable number of sick days. Worse, as in this woman’s case, people can end up losing their jobs if they have had absences for other illnesses, and the employer deems them to be excessive.

Anyone who needs to take more than a few days off due to complications from the flu or any medical condition, no matter how mildly it may have started out, should get documentation from a medical provider that there have been complications. That documentation should be provided to his or her employer. Similarly, anyone who has multiple medical absences relating to the same original illness should ensure that a doctor documents that. An employment law attorney can advise anyone who has been terminated or whose employment has been adversely impacted because of a condition that is covered under the FMLA.

Source: Business Management Daily, “Not a question to sneeze at: Is influenza covered by the FMLA?” No author given, Dec. 26, 2013

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