Yes An Employee with the Flu Can Require FMLA Protocol

From Tiffani McDonough writing at SHRM: 

With flu season at its peak and certain strains of the flu requiring longer recovery periods, workplaces are experiencing a spike in the frequency and duration of flu-related absences. The Centers for Disease Control and Prevention (CDC) report that it may take anywhere from a few days to two weeks to recover from the flu this season.

So, when an employee calls out sick with the flu, is the employee entitled to leave under the Family Medical Leave Act (FMLA)?

Yes, if the FMLA-eligible employee is incapacitated for more than three full consecutive days and either: (1) consults with a doctor two or more times within 30 days, or (2) consults with a doctor once and receives a regimen of continuing treatment (i.e., prescription medication). However, if the flu only lasts a few days and does not require medical treatment, it will not trigger protections under the FMLA.

Although the FMLA itself does not define qualifying illnesses, the FMLA regulations state:

[o]rdinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal diseases, etc. are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave. 29 C.F.R. § 825.113(d).

That said, if the employee’s flu-related illness meets the definition of a “serious health condition,” the FMLA applies.

How does the FMLA define “serious health condition”?

An illness, injury, impairment, or physical or mental condition that involves either inpatient care (i.e., an overnight stay in a hospital, hospice, or residential care facility); or “continuing treatment” by a health care provider.

What constitutes “continuing treatment”?

A period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition that also involves either: (a) treatment by a health care provider two or more times within 30 days of the first day of incapacity, unless extenuating circumstances exist (i.e., the health care provider does not have any available appointments during that timeframe); or (b) treatment by a health care provider on at least one occasion that results in a regimen of continuing treatment under the supervision of the healthcare provider. 29 C.F.R. § 825.115. Further, the first (or only) in-person treatment visit must take place within seven days of the first day of incapacity. Covered “treatment” includes examinations to determine if a serious health condition exists and evaluations of the condition, but does not include routine physical examinations. ...