Flu Bug Meets FMLA Test

May 11, 2001 (PLANSPONSOR.com) - A former AT&T account representative's three-day bout with the flu was protected as a "serious health condition" requiring "continuing treatment" under the Family and Medical Leave Act, according to the US Court of Appeals for the Fourth Circuit.

The court pointed out that Labor Department regulations implementing the FMLA state that the flu is not ordinarily covered by the act. However, since plaintiff Miller was unable to work for several consecutive days and required continuing treatment by a physician, her condition met the regulatory criteria for a “serious health condition,” according to the court’s 2-1 decision.

Case Background

Kimberly Miller was employed at the AT&T customer service center in Charleston, West Virginia for roughly six and a half years.  Throughout her tenure, she was reportedly warned repeatedly about her unsatisfactory attendance level.  However, on Dec. 27, 1996, she was too ill to go to work, and the next day sought treatment at an urgent care center. She was treated and told to return for a reevaluation on December 30.

The urgent care center gave Miller a work-excuse slip for December 28 through January 1, and Miller subsequently requested leave under the FMLA for that period. Her doctor provided information to the employer indicating that Miller experienced a period of incapacity of at least three consecutive calendar days involving treatment two or more times.

AT&T denied the request, arguing that the flu generally is not considered the type of condition covered by FMLA leave, and challenging the claim that she had received treatment two or more times based on records from her doctor. Miller was fired for excessive absenteeism in March 1997.  Miller sued.

Court Docket

The district court granted her summary judgment, finding that her flu constituted a serious health condition and that she had provided adequate certification of her need for FMLA leave. The court later ruled that she was entitled to back pay, plus interest.

On appeal, the court had little problem determining that the Labor Department regulations allowed that conditions such as the flu would qualify if complications arose, and also that “treatments” included evaluations of the condition.

– Nevin Adams              editors@plansponsor.com