The Family Medical Leave Act (FMLA) can reduce even the toughest “covered employers” to 
tears when it comes to compliance.
FMLA applies to chronic and/or serious health conditions or becoming a parent. However, FMLA can apply to illness-related situations that are not chronic in nature.
If you live in the real world, situations are often complicated and don’t fit neatly into defined specifications under FMLA. It’s difficult to know when certain “non-chronic health conditions” or illnesses with relatively short durations, such as the flu, are covered under FMLA. It’s remarkably easy to end up facing an FMLA interference or discrimination charge. It’s advisable to consult legal counsel regarding complicated situations but to make compliance easier and determining which situations qualify for FMLA, understanding some key terms under FMLA is essential.
For non-chronic illnesses, FML-eligible employees working for covered employers are entitled to FML leave for their serious health condition or serious health condition of parents, spouse, child. Now let’s understand what all the terms in that sentence mean.
“COVERED EMPLOYER”
Covered employers are private sector employers with 50 or more employees in 20 or more workweeks in the current or previous calendar year (this includes joint employers or successors to a covered employer) and public agencies (local, state & federal) and public and private elementary schools
“ELIGIBLE EMPLOYEE”
To be eligible for FMLA leave , employees must work for a covered employer, longer than 12 months (need not be consecutive; the employer must look back 7 years (unless the separation was due to military services; in that case the employer must look back to the date of initial employment)), have at least 1,250 hours of service during the 12-months preceding the leave (special hours-of-service requirements apply for airline flight crew employees) and work where the employer has at least 50 employees within a 75 mile radius.
DEFINITION OF “CHILD”
A child is the employee’s son or daughter (biological, adopted, foster child, stepchild, legal ward, child of person standing in loco parentis, under 18, or 18 or over 18 but incapable of self-care because of mental or physical disability) or someone with whom they have in loco parentis relationship.
In Loco Parentis – Employees with or without a legal or biological relationship to the child but with day-to-day responsibilities to care for or financially support the child may stand in loco parentis and be eligible for FMLA leave.
Also, employee can take FMLA leave to care for someone who stood in loco parentis when the employee was a child regardless of their legal or biological relationship with them.
“SERIOUS HEALTH CONDITION”
Illness, injury, impairment, physical or mental condition that involves:
- Staying overnight in hospital or medical care facility or
- Getting continuing treatment from a health care provider for a condition that:
- Prevents the employee (or qualified family member) from performing the functions of the employee’s job (or participating in school or other daily activities)
The flu or other non- chronic illness, might, under some circumstances meet these conditions
“CONTINUED TREATMENT”
Continued treatment requires the employee be incapacitated for more than 3 consecutive days and visit a health care provider 2 times (first visit within 7 days of the first day of incapacity and second visit within 30 days of first day of incapacity unless extenuating circumstances exist) or only once but continues treatment (i.e. a course of prescription medicine or antibiotics or therapy requiring special equipment)
Bed rest, over the counter medicine etc., are not considered continuing treatment.
Circumstances that prevent follow –up visits and are beyond the employee’s control can be extenuating circumstances.
“HEALTH CARE PROVIDER”
Doctors authorized to practice medicine, others capable of providing health care as determined by Secretary of Labor such as Nurses, Physician Assistants etc.
As best practice, employers may provide employees who are absent for more than 3 consecutive calendar days with FMLA eligibility notice. If the employee saw a health care provider once and took continuing treatment, that qualifies for FML and if the employee saw a health care provider twice, regardless of continuing treatment, that qualifies for FML. An employee could be eligible for FMLA if they meet continuing treatment requirements after they return to work.
It’s advisable to look at each situation individually. Rather than trying to find whether the person qualifies based on what their condition is labelled, it’s better to focus on the individual requirements of FMLA. As seen above, unique situations may not fit easily into the FMLA guidelines.
This hopefully brings you closer to FMLA compliance. To get the advice of an expert, I would recommend this audio conference by Mary Gormandy White, M.A., SPHR, who talks about how unusual cases, such as flu etc., may be covered under FMLA.
