Do Swine Flu Cases Qualify for FMLA Leave?

Yesterday, the World Health Organization raised the worldwide pandemic alert level to Phase 4 in response to the growing number of international cases of swine flu. The CDC is reporting that there are 64 laboratory-confirmed cases of the swine flu in the United States.

With the number of suspected swine flu cases in the United States continuing to rise, there will be employees who will be requesting FMLA leave because they have or are suspected of having swine flu, or need to care for a family member with an actual or suspected case of swine flu.   Does swine flu qualify as a serious health condition under the FMLA?

The swine flu may be sufficiently serious to constitute a serious health condition.  Under the Revised Regulations, a serious health condition must involve: (1) inpatient care in a hospital or medical care facility, or (2) continuing treatment by a health care provider.  To qualify as "continuing treatment", the employee must have a period of incapacity of more than three consecutive, full calendar days.  In addition, the employee must receive subsequent treatment, or have a period of incapacity relating to the same condition, that also involves treatment two or more times within thirty days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider or under the orders or referral or a health care provider, or treatment by a health care provider on at least one occasion that results in a regimen of continuing treatment.  A "regimen of continuing treatment" includes a course of prescription medication or therapy requiring special equipment to resolve or alleviate the health condition. 

While the run-of-the-mill flu often does not meet the definition of a serious health condition (see 29 C.F.R. Section 825.113(d)), courts have held that the flu may qualify for FMLA leave if the condition otherwise meets the definition of a serious health condition.  See, e.g., Miller v. AT & T Corporation, 250 F.3d 820 (4th Cir. 2001).  Given the current press concerning the swine flu, one could envision a scenario in which an employee is hospitalized as a result of the swine flu, and/or is absent from work for more than three consecutive days, and treating with a physician while taking anti-viral medications. 

As always, employers are encouraged to require the employee requesting FMLA leave to submit a completed Certification of Health Care Provider for Employee's Serious Health Condition, or Certification of Health Care Provider for Family Member's Serious Health Condition, as appropriate.