The Flu: Coordinate Compliance Among FMLA, ADA, Paid-Leave Laws

February 28, 2018

The fluhas hit the workforce hard this winter. This is the first flu season of the past 15 that all states in the continental United States have reported widespread flu activity during the same week, the Centers for Disease Control and Prevention (CDC) noted. The flu is potent, with patients taking four days or more to recover. That may mean they qualify for Family and Medical Leave Act (FMLA) leave. Different provisions of state and local paid-sick-leave laws and the Americans with Disabilities Act (ADA) might also apply to flu sufferers.

Paid Sick Leave

Federal contractors must provide sick leave for federal contractor employees.

In addition, nine states—Arizona, California, Connecticut, Maryland, Massachusetts, Oregon, Rhode Island, Vermont and Washington—, and the District of Columbia have paid-sick-leave laws.

At least 34 municipalities have paid-sick-leave laws: Austin, TX, Berkeley, CA.; Bloomfield, NJ; Chicago, IL; Cook County, IL.; East Orange, NJ; Elizabeth, NJ; Emeryville, CA.; Irvington, NJ; Jersey City, NJ; Long Beach, CA.; Los Angeles, CA; Minneapolis, MN; Montclair, NJ; Montgomery County, MD.; Morristown, NJ; New Brunswick, NJ; New York City, NJ; Newark, NJ; Oakland, CA.; Passaic, NJ; Paterson, NJ; Philadelphia, PA; Plainfield, NJ; St. Paul, MN.; San Diego, CA; San Francisco, CA; Santa Monica, CA.; Seattle, WA; Tacoma, WA; and .Trenton, NJ.

FMLA

The flu ordinarily isn't covered by the FMLA, which provides 12 weeks of unpaid leave to individuals with serious health conditions or who are caring for a child, spouse or parent with such conditions. However, flu may become a protected serious health condition if an employee is incapacitated for more than three full consecutive days and either:

  • Consults with a doctor two or more times within 30 days,
  • Consults with a doctor once and receives a regimen of continuing treatment (that is, prescription medication).

ADA

The flu typically is not a covered, actual disability under the ADA because it usually does not last long enough to substantially limit a major life activity. But someone with the flu might claim an employer regarded him or her as having a disability, he added. This would invoke the ADA's prohibition on discrimination. The law bars discrimination against those with actual or "regarded as" disabilities; only those with actual disabilities are entitled to reasonable accommodation. However, given that the severe flu circulating this year and resulting in many hospitalizations, the ADA could be interpreted to apply to influenza as an actual disability requiring reasonable accommodation, such as ADA leave.