28 MARCH / APRIL 2019 HUMAN RESOURCES Debra A. Mastrian Partner SmithAmundsen LLC dmastrian@salawus.com SmithAmundsen LLC is a Diamond Associate Member of the Indiana Bankers Association. Flu Season Common questions from employers Flu activity can continue as late as May, according to the Centers for Disease Control and Prevention, well beyond its historic peak in February. Below are answers to some of the flu-related questions frequently asked by employers. Is an employee entitled to FMLA for absences due to the flu? Possibly. The Family and Medical Leave Act (FMLA) provides covered employees up to 12 weeks of unpaid leave during a 12-month period if the employee has a “serious health condition that makes the employee unable to perform” his or her job: • A “serious health condition” is an illness that involves either inpatient care or continuing treatment by a healthcare provider. Inpatient care is typically an overnight stay in a healthcare facility. • “Continuing treatment” is more complex, but is generally a period of incapacity of more than three consecutive full calendar days and any subsequent treatment or period of incapacity that also involves either: (1) treatment or consultation with a healthcare provider two or more times within 30 days of the initial incapacitation; or (2) treatment or consultation with a healthcare provider at least once and a regimen of continuing treatment under the supervision of the healthcare provider. • A “regimen of continuing treatment” includes prescription medication, even without a follow-up medical appointment. 29 C.F.R. § 825.115. Over-thecounter medications (aspirin, flu medicine), bed rest and fluids or other treatment that may be initiated without the direction of a healthcare provider do not qualify as regimens of continuing treatment. So while an employee with a typical case of the flu who recovers with only self-care generally does not qualify for FMLA leave, extenuating circumstances can trigger coverage. It is important to focus not on the name of the illness, “flu,” but rather on the facts of the particular situation to determine whether an illness is a serious health condition as defined by the FMLA. When an employee calls in sick with the flu and is absent for more than three consecutive days, the cautious approach is to send the employee an FMLA medical certification form. It is risky to deny FMLA leave without first taking steps to determine whether the absence qualifies for FMLA protection. If the employee returns the completed medical certification, the employer can then assess whether the condition is a serious health condition. [Note: Even if FMLA does not apply, an employee may be entitled to leave under state or local sick leave laws, or the employer’s sick leave or paid time off policies. Depending on the circumstance, an employer may also need to examine whether the Americans with Disabilities Act, as amended, applies.] Can an employee who is exhibiting flu-like symptoms at work be sent home? Yes, an employee who is exhibiting flu-like symptoms at work (fever, excessive coughing, vomiting, chills, etc.) can be sent home. Employers have the right to exclude from the workplace potentially infectious employees, even if they want to work. Preventing the spread of contagious illness is a legitimate concern for employers in maintaining a safe and healthy workplace. [Note: The Occupational Safety and Health Administration (OSHA) requires all employers to maintain a safe and healthy workplace. However, failing to send home a sick employee home does not mean the employer has violated the law.]
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