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 swine flu (H1N1 virus) is covered under the FMLA depends on its seriousness, according to the U.S. Department of Labor.
The U.S. Department of Labor (DOL) recently published question-answer guidelines regarding work leave under the Family and Medical Leave Act for illness caused by pandemic influenza, such as the 2009 outbreak of swine flu.
To qualify for family or medical leave according to the DOL’s guidelines, the flu must have caused 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 likely will qualify for FMLA leave.
For the definition of a serious health condition under the FMLA, see Fact Sheet #28: The Family and Medical Leave Act of 1993 published by the DOL.
The guidelines also indicate that employees may not take time off from work under the protection of the FMLA, simply to avoid catching the H1N1 swine flu virus. That’s because the FMLA protects employees only for serious illnesses (or injuries) and does not provide for prevention of same.
However, the guidelines urge employers to avoid further spreading a pandemic flu virus by allowing sick employees to stay away from work, whether or not they are entitled to sick leave.
This just a quick summary of the DOL’s pandemic flu guidelines. To read more, see Pandemic Flu and the Family and Medical Leave Act: Questions and Answers. The guidelines 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.
