Facts on Employment Laws and H1N1 Flu

Is H1N1 flu a serious health condition under the Family and Medical Leave Act (FMLA)?

            It could be. The FMLA rule states that “ordinarily, unless complications arise, the common cold, the flu … are examples of conditions that do not meet the definition of a serious health condition.” However, complications can arise with H1N1 flu.

Is H1N1 flu an American with Disabilities Act disability?

            Probably not, since it usually is short term.

How might Fair Labor Standards Act requirements apply to employees who are out because of H1N1 flu?

For exempt employees, time away from work can be unpaid as long as it is in full-day increments if it is voluntary and initiated by the employee. For time off mandated by employers, the time away from work for exempt employees can be unpaid only in full-pay week increments. For nonexempt workers, time away can be unpaid, subject to paid-leave policies.

− Allen Smith, J.D., HR Magazine, October 2009

FMLA LEAVE DOES NOT PROHIBIT DISCHARGE FOR MISCONDUCT

The federal appeals court covering the Midwestern USA has issued an opinion affirming that an employee can be fired for misconduct even though he/she is on FMLA leave at the same time.  The case involved an employer who discovered evidence of serious misconduct (e.g. unauthorized purchases and failure to perform work duties) by a company officer.  The discovery was made while the employee was out on FMLA leave and the company decided to discharge him immediately rather than wait to restore the employee from his FMLA leave first.  The court ruled that the employee’s right of restoration was only as great as his right would be while he was not on leave. Because the employer was able to convince the court that the termination would have occurred regardless of the employee’s leave status, there was no FMLA violation.  Note that the FMLA regulations indicate the same is true for layoffs and other types of terminations, provided the employer can show they would have occurred regardless of leave status.

Acknowledgement and thanks to Mike O’Brien (writer) and Kriss Hess (sender) at the law firm Jones Waldo in Salt Lake City, UT