Key to remember: Each year, many employees request time off due to a cold or flu. Be ready to consider your FMLA obligations.

Applies to: Private employers with 50+ employees, and all public agencies.

Impact to customers: Customers will be prepared to deal with the upcoming cold and flu season-related leave requests.

Possible impact to JJK products/services: This is a news item.

This year, getting a flu shot may be more important than ever, given the ongoing pandemic, and the desire to avoid having two conditions simultaneously. While most employers are aware that a simple cold or flu does not generally qualify for FMLA leave, questions remain regarding conditions that are usually non-serious. Here are a few Q & As to help clarify.

Q: Employees on occasion will go to their doctor if their cold or flu lasts more than three days. The doctor may prescribe a medication. Ordinarily, unless complications arise, the common cold and flu are not serious health conditions for purposes of FMLA. Can a cold or the flu ever be a serious health condition for purposes of FMLA?

A: Yes, the cold or flu may be a serious health condition for FMLA purposes if the individual is incapacitated for more than three consecutive calendar days and receives treatment either once followed by a regimen of continuing treatment (e.g., prescription), or receives treatment twice.

Q: What if the employee has a telemedicine visit with the doctor but does not actually see the doctor for an examination?

A: Currently, if an employee who has the flu televisits with a doctor, this could be seen as receiving treatment — at least until December 31, 2020. Until then, telemedicine visits are considered to be in-person visits, and electronic signatures are accepted for purposes of establishing a serious health condition. The telemedicine visit must include an examination, evaluation, or treatment by a health care provider; be performed by video conference; and be permitted and accepted by state licensing authorities.

Q: What if the doctor prescribes medication only “in case the cold turns into something more serious”? What if the employee does not have the prescription filled or does not follow the doctor’s orders?

A: A prescription that is given just in case raises the question of whether the existing condition is currently a serious health condition for purposes of FMLA. In all likelihood, the employee has not yet suffered the “complications” that would qualify the illness as a serious health condition for FMLA leave purposes. If the condition worsens to the point the medication is needed, the condition may be a serious one. An employee who does not follow the doctor’s instructions is probably not under a “regimen of continuing treatment by or under the supervision of the health care provider” within the meaning of the FMLA regulations. Much would, however, depend upon all the facts involved.

Q: May employers mandate that employees get a flu shot to help avoid the need for leave?

A: In many situations, yes, employers may mandate that employees receive a flu shot as a condition of employment. Employers must, however, allow for exceptions in situations involving an employee’s other health condition that may prohibit receiving the shot, or an employee’s religious beliefs regarding vaccines.