Tuesday, May 24, 2016

What is a "Serious Health Condition" Under the Family and Medical Leave Act (FMLA)? Is the Flu Covered by FMLA?

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Short-Term Disability
While on FMLA Leave
Qualified Employees Suffering From a Serious Health Condition Are Entitled to Up to 12-Weeks of Unpaid Leave Per Year Under the Family and Medical Leave Act (FMLA)

Generally speaking, the Family and Medical Leave Act provides qualified employees with the right to take time off of work without fear of retaliation if the employee or his/her close family member has a "serious health condition," or if the employee seeks to take time off to care for his/her new-born or adopted child.

FMLA = Job Security via Reinstatement Rights
Here are the basic requirements for FMLA Leave

NOTE:  Although there are some exceptions for certain types of employers, and certain types of employees, the following general rules apply to most American workers):

Employer:  must have more than 50 full-time employees located within 75-miles of applicat employee's workplace 

Employee:  must have been employed by company for at least one-year (employment term need not be consecutive);

Employee:  must have worked at least 1,250 hours during the 52-weeks immediately preceding request for leave;

Employee OR employee's close family member must have a serious health condition;

Employee must not have taken 12-weeks of FMLA leave within 12-months immediately preceding leave request (if less than 12-weeks previously used during immediately preceding 12-months, employee may take remaining number of days/weeks until full 12-week allotment exhausted).

Do I Have a Serious Health Condition That Entitles Me to Family Leave?  Does My Close Family Member, Infant or Child Have a Serious Health Condition Under FMLA?

What is a "Serious Health Condition" Under FMLA?

FMLA leave qualification issues seldom arise when the injury or illness at issue involves a serious personal injury such as one suffered in a car accident or a serious event that results in an observable wound or injury, or an in-patient stay at a hospital lasting more than a day.

Similarly, if an employee or his/her close family member is suffering from a serious illness such as a heart condition, cancer or potentially life-threatening malady, the right to FMLA Leave will rarely be called into question.

NOTE: In such situations, the employee's initial entitlement to FMLA Leave will likely not be debatable; nevertheless, it is possible that at some point the employee's right to remain out on FMLA Leave may become an issue of contention.

In addition to the above scenarios, leaves necessitated by a pregnancy, or the birth of a child, are known to be covered by FMLA.

FMLA Leave Always Available to Pregnant Workers
 and Immediately Following Childbirth
Is a Hospital Visit or Stay Required for Me to be Entitled to Family and Medical Leave (FMLA)?  Can My Family Doctor Put Me Out of Medical Leave?


Certification from Your Physician Always Required for FMLA Leave
FMLA entitlement issues most often arise when a medical condition does not require a hospital stay or potentially life sustaining medical care.  Hence, while an employer may (and almost always will) require that your physician complete an FMLA Medical Certification form no matter what the reason for your absence, such Certifications or relatively pro forma when the reason for leave is a serious injury sustained in an accident, or where the employee has been diagnosed with a potentially life threatening illness, disease or condition.

Where a potential serious condition other than significant personal injury, life threatening illness or pregnancy-related condition is involved, however, the medical certification becomes truly essential.

There are two situations involving relatively short-term absences that can lead to dispute - absences due to the onset of symptoms relating to chronic, recurring illnesses and short-term, non-recurring illnesses such as the flu.

While obtaining FMLA Leave in order to treat and recover from acute onset of a chronic illness is often simple, companies detest granting FMLA leave for short-term illnesses such as the flu, and the law supports denying leave in such circumstances.

How or Where Can I Find a FMLA Medical Certification Form to be Completed by my Family Doctor?  My Chronic Medical Condition Has Cropped Up and I Need Family Leave

If you need to take time off of work because a previously asymptomatic chronic illness has recently been causing you pain and discomfort, it is essential that you seek medical treatment while out on leave, and that your physician complete a FMLA Leave Medical Certification.

Always Necessary, but Essential
When Seeking Leave for Chronic or Short-Term Illness
Where FMLA qualifications for chronic conditions are concerned, the United States Department of Labor regulation states
Leave Entitlement Carefully Defined
Where Short-Term Illnesses Concerned


"Chronic Conditions: Any period of incapacity or treatment for such incapacity due to a chronic serious health condition that requires periodic visits (at least twice per year) to a health care provider, continues over an extended period of time and may cause episodic rather than a continuing period of incapacity."

Typical recurring chronic conditions include medical conditions such as diabetes, epilepsy, obstructive bowel syndrome and the like.

Thus, if you are suffering from the acute onset of symptoms you know to be associated with a chronic illness from which you suffer, it is imperative that you contact your doctor either immediately before or immediately after you give your employer notice of your need for FMLA Leave.  If your physician is "on board," your application for FMLA Leave due to the onset of symptoms associated with a chronic medical condition will almost always be granted.


Am I Entitled to FMLA Leave If I Miss a Week of Work Due to the Flu, or Bronchitis or an Earache or a Bad Cold?  My Child Has the Flu, and a Virus, May I Take Family and Medical Leave to Care for My Son or Daughter?

Non-recurring, one-time ailments lasting up to a week are among the most difficult FMLA situations.

Perhaps the most common area of dispute arises when an employee misses work for 2-3 days because the employee or his/her close family member (spouse or child) is sick with a "one-time, non-recurring" illness such as the flu, food poisoning or a similarly disabling short-term illness treated without assistance from the family doctor.

The Family and Leave Act generally does not permit an employee to take FMLA Leave because the employee or a close family member has the flu, a cold or a viral infection of some sort.

Flu, Common Cold Not
Serious Health Condition Under FMLA
In this connection the United States Department of Labor has stated the following:

"The legislative history also states that the term [serious health condition] "is not intended to cover short-term conditions for which treatment and recovery are very brief" and "minor illnesses which last only a few days and surgical procedures that typically do not involve hospitalization and require only a brief recovery period. Complications arising out of such procedures that develop into ‘serious health conditions’ will be covered by the act."

How do FMLA, Short-Term Disability Benefits and Unemployment Fit together? 

Philadelphia Area Family and Medical Leave (FMLA) Attorney Helping Employees With Leave Requests and Short-Term Disability Applications


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John A. Gallagher is an employment lawyer who represents claimants in Pennsylvania. 

John typically represents workers who need an employment lawyer throughout Southeastern Pennsylvania, including those working in Philadelphia County, Delaware County, Montgomery County, Bucks County, Chester County, Berks County and Lancaster County.

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If you believe you may require Family and Medical Leave and Short-Term Disability Benefits, and live or work in Philadelphia, Allentown, Reading, Bethlehem, Lancaster,  Levittown,  Abington, Allentown, Auburn, Ambler, Ardmore, Aston, Audubon, Avondale,  Bala Cynwyd, Bensalem, Berwyn, Bethlehem,Bird In Hand, Birdsboro, Birmingham, Boothwyn, Bowmansville, Boyertown, Bridgeport, Bristol,  Brookhaven, Broomall,  Brownfield,  Bryn Athyn,  Bryn Mawr, Buckingham,  Burlington, Caln, Chadds Ford, Chalfont, Charlestown, Cheltenham,  Chester Springs, Chester, Chester Heights,  Cheyney, Coatesville, Collegeville, Concord, Concordville, Conshohocken, Coventry, Cranberry,  Crum Lynne,  Darby, Daylesford, Devault, Devon, Douglassville, Downingtown, Doylestown, Dresher,  Drexel Hill,  Dublin, Eagleville, East Bradford, East Brandywine, East Coventry, East Fallowfield, East Goshen and East Nantmeal or any surrounding areas, feel free to send me an e-mail or give me a call.  I am always glad to spend some time with people via a free telephone consultation.

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