Not necessarily. FMLA protection requires that the employee experience a serious health condition — compliance with the employer’s swine flu policy is not enough. In a case with similar facts, a federal district court in Illinois held that a doctor who worked with pregnant women and infants did not have a serious health condition when she reported that, pursuant to hospital policy, she would be taking sick time in order to isolate herself and avoid infecting patients.
The court pointed out that the doctor did not allege that she actually had the swine flu or that she advised her employer that she had swine flu. She argued that because swine flu was a global pandemic, it met the FMLA’s definition of a serious health condition. However, the court ruled that if the doctor never contracted the illness, it was irrelevant whether swine flu met this definition.
Unless complications occur, flu generally is not a serious health condition qualifying an employee for FMLA leave. While the Labor Department has encouraged employers to support community mitigation measures by asking workers who are ill with pandemic flu to stay home, the Department has also asked employers in these circumstances to consider flexible leave policies and options such as allowing employees to work from home.
Source: McCammon-Chase, M.D. v Circle Family Care, Inc, NDIll, July 23, 2010, 2010 U.S. Dist. LEXIS 74435; Wage and Hour Division’s Questions and Answers about Pandemic Flu and the FMLA, http://www.dol.gov/whd/healthcare/flu_FMLA.pdf.