Generally, eligible employees may take job-protected leave from work under the Family and Medical Leave Act (FMLA) to care for their own illnesses or those of sick family members; but, whether or not the flu is covered under the FMLA depends on its seriousness according to the U.S. Department of Labor.
The U.S. Department of Labor (DOL), which enforces the Family and Medical Leave Act, published guidelines regarding work leave under the FMLA for illness caused by a pandemic outbreak of influenza (“the flu”).
The DOL published the guidelines because of work-related issues arising from the 2009 outbreak of the H1N1 virus (which was called the swine flu at the time). However, the aspects of FMLA leave apply to any strain of flu, widespread or not.
Simply put, the intent of the FMLA is to cover medical conditions that make employees absent from work for more than just a few days. Subsequently, to qualify for family or medical leave according to the DOL’s guidelines, the flu must have caused one or more complications that created a “serious health condition” as defined by the FMLA.
In other words, ordinary flu symptoms are not likely to qualify for FMLA leave anymore than common cold symptoms would; but, if flu symptoms escalate into a serious health condition as defined by the FMLA, then the flu-related condition will likely qualify for FMLA leave. For the definition of a serious health condition under the FMLA, see The Family and Medical Leave Act published by the DOL.
The DOL’s guidelines also indicate that employees may not take time off from work under the protection of the FMLA, simply to avoid catching the flu. That’s because the FMLA protects employees only for serious illnesses (or injuries) and does not provide for the prevention of same.
However, the guidelines urge employers to avoid further spreading a flu virus, by permitting sick employees and those who have been exposed to flu-sick family members to stay away from work.
This just a quick summary of the DOL’s flu guidelines. To learn more, browse to Pandemic Flu and the Family and Medical Leave Act: Questions and Answers by the DOL. The questions and answers are geared mostly toward employers, but they are informative for employees too.
See also Pandemic Flu and the Fair Labor Standards Act: Questions and Answers by the DOL, for wage and hour issues related to a pandemic flu outbreak.
To determine whether or not you are eligible for FMLA flu leave or to generally learn more about your employee rights under the FMLA, see the Family and Medical Leave Act Advisor by the DOL. Consult an attorney for specific legal advice regarding FMLA leave in your particular situation.