H1N1 Virus (Swine Flu) and the Family Medical Leave Act

The H1N1 virus, perhaps better known as the Swine Flu, has been rapidly spreading throughout the world and has received a tremendous amount of media coverage. Some of the more severe symptoms are fever, body aches, vomiting, and diarrhea. Like the regular flu, the severity of symptoms varies by individual. For most, the sickness is mild and passes in a few days. However, for some individuals, the symptoms can last much longer, be more severe, and even fatal.

Individuals forced to miss work due to this virus, either because they caught it or a family member caught it, should be aware that the protections of the Family Medical Leave Act (FMLA) may apply. The FMLA permits an employee to take unpaid leave without risk of being fired or discriminated against because they request or take family medical leave.

Employees Covered Under the FMLA

Employees are eligible to take FMLA leave if the employee:

• Worked for the employer for at least 12 months;

• Worked for the employer for at least 1,250 hours during the previous 12 month period before the leave; and

• Works at a location with at least 50 employees who are employed by the employer within 75 miles of that location.

For an eligible employee to qualify for unpaid leave, the illness must be classified as a “serious health condition.” There are several factors that can be used to determine if the illness is sufficient to trigger FMLA protections, but generally you must be incapacitated for three or more full, consecutive days and be seen by a health care professional two or more times for the illness. For most people, the flu will not qualify for FMLA coverage. However, courts have held that if severe enough, FMLA protections apply to the flu. See e.g., Miller v. AT & T Corp., 250 F.3d 820 (4th Cir. 2001).

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