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The leaves and the temperatures are falling. Employees are spending more time indoors around others, generally spreading germs. This year, cases of both the flu and COVID can be expected to rise, and they have some of the same signs and symptoms. Either could be a serious health condition under the FMLA.

The last couple years saw fewer flu cases, but this year, it very well could see a comeback. While a simple cold or flu does not generally qualify for FMLA leave, such conditions can become serious. Here are a few questions and answers to help clarify.

Q: Employees on occasion will go to their doctor if their cold or flu lasts more than three days. The doctor might prescribe a medication. Ordinarily, unless complications arise, the common cold and flu are not serious health conditions for purposes of FMLA. Can a cold or the flu ever be a serious health condition for purposes of FMLA?

A: Yes, the cold or flu may be a serious health condition for FMLA purposes if the individual is incapacitated for more than three consecutive calendar days and receives treatment either once followed by a regimen of continuing treatment (e.g., prescription), or receives treatment twice.

Q: What if an employee has only a telemedicine visit with the doctor?

A: If an employee who has the flu, cold, or COVID televisits with a doctor, this is seen as receiving treatment. Telemedicine visits are considered to be in-person visits, and electronic signatures are accepted for purposes of establishing a serious health condition. The telemedicine visit must include an examination, evaluation, or treatment by a health care provider; be performed by video conference; and be permitted and accepted by state licensing authorities.

Q: What if the doctor prescribes medication only “in case the cold turns into something more serious”? What if the employee does not have the prescription filled or does not follow the doctor’s orders?

A: A prescription that is given just in case raises the question of whether the condition is currently a serious health condition for purposes of FMLA. In all likelihood, the employee has not yet suffered the “complications” that would qualify the illness as a serious health condition for FMLA leave purposes. If the condition worsens to the point the medication is needed, the condition would likely then be a serious one. An employee who does not follow the doctor’s instructions is probably not under a “regimen of continuing treatment by or under the supervision of the health care provider” within the meaning of the FMLA regulations. Much would, however, depend upon all the facts involved.

Q: May employers mandate that employees get a flu shot to help avoid the need for leave?

A: In many situations, yes, employers may mandate that employees receive a flu (or COVID) shot as a condition of employment. Employers must, however, allow for exceptions in situations involving an employee’s other health condition that may prohibit receiving the shot, or an employee’s religious beliefs regarding the shot. This year, more employees might decide to not get a flu shot, which could lead to more leave requests.

Key to remember: Each year, many employees request time off due to a cold or flu (or COVID). Be ready to consider your FMLA obligations. If an employee calls in because of a cold or flu, make sure you keep an eye out in case the employee’s condition qualifies as an FMLA serious health condition. Now might be a good time to provide FMLA refresher training to managers and supervisors to help.