For the next several months, the flu will continue to make its way through our population, including through our workplaces. Many employers may be surprised to find out that an employee with the stomach flu may qualify for FMLA Leave.

In very simple terms, FMLA allows for up to 12 weeks of unpaid medical leave if a qualified employee must leave work due to a serious medical condition or to take care of a family member with a serious medical condition. The leave also allows for time off relating to the care of a newborn following their birth or the care for a newly adopted or fostered child.

Employers with 50 or more employees within a 75 mile radius are required by law to offer this leave. Smaller employers working with a PEO may elect to offer FMLA leave, but if they do, they must follow all of the regulations associated with the law.

So what is a serious medical condition under FMLA?

An illness, injury, impairment, or physical or mental condition that involves either inpatient care or “continuing treatment” by a health care provider.

What is 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.

So this means that if an employee misses more than three consecutive days of work and consults with a doctor two or more times within 30 days or if they consult with a doctor once and receives a prescription medication, any time missed by the employee due to this illness would qualify as FMLA leave.

On the other hand, if the employee only misses a couple days and/or they do not seek medical treatment for their illness, any time off would not be FMLA-qualified leave.

If you have 50 or more employees, anytime an employee is out due to illness, it would be best to be prepared for the leave to qualify for protections under FMLA. If you have any questions about FMLA, please feel free to contact the HR department at A Plus Benefits.

More information can be found here:

SHRM- Flu Remedy: Can an Employee Get FMLA Leave for the Flu? 

We also have a toolkit and a webinar designed to introduce small businesses to the intricacies of FMLA.