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Your Right to Take Time Off of Work For the Flu

Flu season is upon us. And unfortunately, even the healthiest practices cannot always prevent a person from becoming sick. But most employees are given a limited number of paid sick or vacation days. So what can you do if you or a family member falls seriously ill this season? Will your job be protected? This post addresses employees’ rights to take time off of work for illness, particularly under the Family Medical Leave Act (FMLA).

How do I know if I am eligible for FMLA?

First, in order to have job protection under the Family and Medical Leave Act (FMLA), your employer is required to provide FMLA coverage under the specific circumstances of your employment. Among other things, your employer must have 50 or more employees. You must:

  1. have worked for the employer for at least 12 months;
  2. have worked at least 1,250 hours over the previous 12 months; and
  3. work at a location where at least 50 employees within 75 miles are employed.

If you qualify for FMLA coverage under the above standards, then your employer must provide you with up to 12 weeks of job-protected, unpaid leave during a 12 month period for specified family and medical reasons, which may include flu complications causing a “serious health condition” (see below).

Is the Flu a Serious Health Condition?

Under the FMLA, a “serious health condition” includes illness which requires inpatient care or continuing treatment by a health care provider, which is defined as a period of incapacity for more than three consecutive calendar days and either:

  • Treatment by a health care provider two or more times, within 30 days of the first day of incapacity, or
  • Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment (such as prescription medications). 29 CFR 825.113

Ordinarily, the common cold or flu do not meet the definition of a serious health condition and do not qualify for FMLA leave. 29 C.F.R. § 825.113(d). The flu must be serious enough to require you to see a doctor before it will potentially trigger FMLA protection.

Can I use FMLA leave to stay home to avoid getting the flu?

No. The FMLA protects eligible employees with a serious health condition, or who need to care for covered family members with a serious health condition. You may not use FMLA coverage to pro-actively avoid catching the flu.

Is my employer required to pay me for sick leave?

The federal FMLA does not require employers to provide paid leave. However, in some circumstances, such as under the Wisconsin FMLA (WFMLA), you may be able to substitute paid sick, paid vacation, or PTO days for your FMLA leave, if you have them.

Can my employer send me home if they think I am sick?

Possibly. Ideally, your workplace will have a plan in the event of a flu outbreak. This plan or policy could permit the employer to send employees home. If so, your employer should notify you of that decision as soon as possible. On that note, always remember that in this type of decision-making you cannot be discriminated against on the basis of a protected status, such as race, sex, age (40 or over), or disability, among others. If you think you may have been a victim of discrimination, seek legal advice.

I am out with the flu. Can my employer restrict my return to work, requiring me to provide a doctor’s note or submit to a medical exam?

Yes. An employer may require one of these actions in two cases. If the employer has objective evidence and reasonable belief that your present medical condition would:

  1. Prevent you from performing essential job functions (i.e. fundamental job duties), or,
  2. Pose a direct threat (i.e. significant risk of substantial harm that cannot be reduced) to safety in the workplace

Also, if you are out on FMLA leave, your employer may have a policy that requires all similarly-situated employees to show that your doctor has approved you to go back to work. If your employer requires this, they must notify you in advance.

Does FMLA leave affect my group health insurance coverage?

No. Employees on FMLA leave are entitled to the same terms of coverage that existed before the leave. For more information and FMLA leave and health insurance coverage, click here.

Can my employer terminate me if I need to miss work to care for a sick family member?

It depends. If you are covered and eligible for FMLA and you need to care for a spouse, child, or parent who has a “serious health condition,” then you are entitled to up to 12 weeks of job-protected, unpaid leave.

What do I need to do if I want to take FMLA leave?

Promptly contact your employer’s human resources office. Employees seeking to use FMLA leave are required to provide 30-day advance notice when the need is foreseeable and notice is possible. Obviously, an absence due to the flu may be unforeseeable. Nevertheless, you are required to give notice “as soon as practicable.”

After you inform your job of the need for FMLA, it may require additional documentation such as:

  • a doctor’s note supporting your need for leave due to a serious health condition
  • a second or third medical opinion
  • periodic updates during your leave and when you intend to return to work
  • a doctor’s note clearing you to return to work.

While this additional documentation may feel unreasonable, it is legal for your employer to require it. If you feel your employer is making unreasonable demands, you may want to contact an attorney to clarify the situation.

What should I do if I think my right to FMLA leave has been violated?

Contact Hawks Quindel’s experienced FMLA attorneys for a free evaluation of your claim.

Danielle Schroder

Associate at Hawks Quindel, S.C.
Attorney Danielle Schroder is a litigation associate practicing in the areas of employee benefits, personal injury and employment discrimination. Her kind, gentle presence makes her an excellent counselor to clients in crisis. But don’t let her pleasant demeanor fool you: Attorney Schroder is tenacious in her pursuit of justice and works tirelessly to right the wrongs suffered by her clients.