Cold and flu season is an unwelcome but predictable reality in the workplace. As illnesses spread, is it possible that cold and flu diagnoses could qualify for FMLA?

The answer depends on whether the absence qualifies for protection under the Family and Medical Leave Act (FMLA). When it does, treating it like a routine occurrence can expose the employer to legal risk.

Common Workplace Scenario

An employee calls in saying they have flu or cold symptoms. They return to work after missing several weeks due to complications such as pneumonia, myocarditis, and acute respiratory distress syndrome. 

A routine cold or flu usually does not qualify for FMLA. However, it can become protected if it meets specific criteria.

To trigger FMLA protection, the illness must involve:

• More than three consecutive calendar days of incapacity, meaning the employee is unable to perform their job; and
• Continuing treatment by a healthcare provider, which includes:
  • Two in-person visits within 30 days of the first day of incapacity, or
  • One in-person visit within seven days that results in a prescribed course of treatment (such as prescription medication). A live telehealth visit may qualify if the provider observes and diagnoses the condition.

“Incapacity” does not mean the employee must be confined to their home. Seeing an employee briefly out in public, for example, picking up medication does not disqualify FMLA protection.

FMLA generally does not apply when:

• The employee is advised to rest, drink fluids, and take over-the-counter medication only.
• The employee has only a phone call with a provider (a live telehealth visit may qualify if the provider observes and diagnoses the condition).

Although FMLA leave is not often used for the common cold or flu, managers and HR staff should know when an employee may be entitled to FMLA rights. If the employee’s flu-related illness meets the definition of a “serious health condition,” then the FMLA applies.

When an illness may qualify, HR should avoid making assumptions. Instead:

• Provide the employee with an FMLA medical certification form.
• Require timely completion (generally within 15 days).
• Evaluate eligibility based on the certification, not speculation.

Supervisors should be trained to flag potential FMLA situations, not decide them.

When in doubt, err on the side of protection. No employer wants to become the test case that proves the rule.