Can I use FMLA for normal sick days in Texas?

With cold weather setting in its time for flu, colds and other short term illnesses and sick days from work. Some employers do not have a sick leave policy that allows the employees to take sick leave for minor illnesses. Other people work at an employer with sick leave but the employee exhausted leave under the employer’s sick leave policy. These conversations normally turn to the employee asking whether FMLA leave is available for short term leave. In most cases FMLA will not protect you when you need leave for a short period due to something minor; but it is important to understand when FMLA does become available in these situations.

Today’s post discusses why FMLA typically does not apply and what conditions allow FMLA to protect your job. We’ll wrap up talking about whether you want to use FMLA if it is a viable option.

Congressional intent of FMLA leave protections

When Congress enacted the Family Medical Leave Act, it enacted a statute designed to secure jobs in situations where employees or a family member has a serious medical condition that prevents the employee from working or the need to care for that family member would prevent the employee from performing his or her job. FMLA uses “serious health condition” as a term to define the types of medical conditions FMLA covers. It was never designed to institute a general sick leave policy or require employers to institute a general sick leave policy. Congress specifically sought to avoid situations where an employee with a cold could obtain FMLA protections for a day or two of missed work. In a 1996 advisory letter, the Department of Labor had this to say about its regulatory interpretation of a “serious health condition” under FMLA:

In developing the final regulatory definition of “serious health condition” at section 825.114, the Wage and Hour Division carefully reviewed the statute, the legislative history, the public comments received during rulemaking, and its enforcement experience under the interim regulations.

As a result of this review, separate definitions were established for: (1) any period of incapacity due to pregnancy and prenatal care (825.114(a)(2)(ii)); (2) a chronic serious health condition (such as asthma, diabetes, etc., section 825.114(a)(2)(iii)); (3) a permanent or long-term condition for which treatment may not be effective (such as Alzheimers, strokes, terminal diseases, etc., section 825.114(a) (2)(iv)); and (4) to receive multiple treatments (including recovery there from) either for restorative surgery after an accident or other injury, or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days in the absence of medical intervention or treatment (such as dialysis, chemotherapy, etc., section 825.114(a)(2)(v)).

Serious medical conditions under FMLA for FMLA leave

As you can see, a common cold or flu is typically not going to fall under one of these types of serious health conditions. Now you might point out that the last definition provided by the DOL states, “a condition that would likely result in a period of incapacity of more than three consecutive calendar days in the absence of medical intervention or treatment.” However, FMLA regulations clarify that this three day period of incapacity requires some form of medical treatment. It either requires: (1) two or more treatments by a health care provider; or (2) one treatment by a health care provider plus continuing treatment under the supervision of the health care provider.

This includes ongoing therapy, prescription medication and so forth. The regulations specifically exclude steps an individual could take without a visit to the doctor. If you visit a doctor and the doctor tells you to go home and rest you are out of luck.

On the other hand, if you visit your doctor and receive a script for medication and you are incapable of working for three or more consecutive days then you would be entitled to FMLA leave (assuming you are otherwise eligible for FMLA leave) for your illness. So that can be one reason you could enjoy FMLA protections for a flu or cold.

How a common cold or flu can become a serious medical condition under FMLA

Additionally, your cold or flu might result in FMLA-protected leave if other conditions are also met. If your flu or cold develops into a more serious disease then you may need medical treatment. Then you may be incapacitated with illness for three or more consecutive days.

Additionally, if you suffer from some other medical condition, such as an immunity disorder, then that underlying condition may qualify for FMLA protection for leave related to a cold or flu; but most likely only when the cold or flu requires medical care (ADA protections may also arise). The cold or flu may aggravate a serious medical condition, like asthma, that prevents you from performing your job. In these situations you need to show you are under the continuing care of a health care provider and sought care for the aggravated condition.

Should you request FMLA leave?

If you qualify for FMLA care for minor illness, you may not want to request FMLA leave. You can receive twelve weeks of FMLA leave in a twelve month period. Depending upon your other medical needs you may have a greater need for that FMLA leave time. If your employer offers sick leave it is probably better to first exhaust sick leave and then use FMLA. You can secure more sick leave time by using the two sick leave options consecutively rather than concurrently. If you exhausted the sick leave policy and it is FMLA leave or disciplinary action then FMLA might be better.

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