Here comes cold and flu season; are they FMLA serious health conditions?


Mario was feeling just plain awful. Since everyone else in his family had a nasty bout of the flu, he figured he was getting it, too. He was also hoping it wasn’t COVID. In any case, he knew that a day at home under the blankets would do him good, so he called into work. The next day, he felt just as bad and called in again. The third day, which was a Thursday, he was no better, so he called in yet again. On Friday he went to the doctor, who told him he had the flu and to drink plenty of fluids. By Monday, he was feeling much better, and he went to work.

How would you handle Mario’s absence? Would you suspect that it could be protected by the FMLA?

He was absent for more than three days, so his leave met part of the FMLA’s definition of a serious health condition. He did not have an overnight stay, so you would not need to worry about that.

You know that, for purposes of the FMLA, a serious health condition can include a period of incapacity of more than three, consecutive, full calendar days, and any subsequent treatment that also involves - 

  • Treatment two or more times within 30 days of the first day of incapacity by a health care provider, or
  • Treatment at least once, resulting in a regimen of continuing treatment.

You also know that a serious health condition can involve other situations like pregnancy or chronic conditions, but those don’t apply to Mario’s situation. You figure it won’t hurt to ask Mario a question or two, such as whether he received treatment that would put his condition under the FMLA’s definition.

Mario did experience a period of incapacity of more than three days, and he tells you that, although he did receive treatment at least once, it did not result in a regimen of continuing treatment. Therefore, his particular situation would not qualify for FMLA protections.

Let’s say, however, that, over the weekend, Mario’s condition worsened, and his wife took him to the immediate care clinic. There he was treated again, and was told to try an over-the-counter medication.

In that situation, Mario received treatment twice, so his condition would meet the FMLA’s definition of a serious health condition.

One of the challenges in administering FMLA leave during cold and flu season is trying to stay on top of when a usually mild condition worsens into a serious one, thereby qualifying an employee to the FMLA’s protections.

One way to help get a handle on this is to train your managers and supervisors on how the FMLA defines a serious health condition. That way, they can be on the lookout for employees who are incapacitated for more than three days, and let you know.


The J. J. Keller LEAVE MANAGER service is your business resource for tracking employee leave and ensuring compliance with the latest Federal and State FMLA and leave requirements.