Until recently, most employers felt secure in denying Family and Medical Leave Act (“FMLA”) leave to employees incapacitated from an ordinary case of the cold or flu. At least one court has now determined, however, that even employees suffering from such routine and relatively minor illnesses may be entitled to FMLA leave. With this finding, FMLA protection may now be extended to illnesses never envisioned by Congress when this legislation was enacted.

Family and Medical Leave Act

The FMLA was enacted by Congress in 1993 to provide protection for employees who require time off to attend to various medical conditions. Specifically, eligible employees are entitled to take FMLA leave for any of the following reasons: 1) to care for the employee’s newborn child; 2) to care for a child placed with the employee for adoption or foster care; 3) to care for the employee’s spouse, child or parent who has a serious health condition; or, 4) to address the employee’s own serious health condition which renders him unable to perform the essential functions of his job. 29 U.S.C. § 2612(a).

The FMLA defines “serious health condition” as an illness, injury, impairment, or physical or mental condition that involves: 1) inpatient care (i.e., an overnight stay) in a hospital, hospice or residential medical care facility, including any period of incapacity or any subsequent treatment in connection with that inpatient care, or 2) continuing treatment by a health care provider. 29 C.F.R. § 5.114(a). “Continuing treatment” has been interpreted to mean — among other things — a period of incapacity of more than three consecutive days and any subsequent treatment or period of incapacity relating to the same condition that involves either: 1) treatment two or more times by a health care provider or, 2) treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of a health care provider.

The FMLA’s legislative history shows that the major impetus behind the enactment of this legislation was to provide relief to workers whose jobs could be jeopardized when either they or close family members suffered from major illnesses, such as cancer. Until recently, employers had confidently relied on this legislative history and various interpretations thereof to conclude that, absent complications, conditions such as the common cold or flu do not meet the definition of a “serious health condition” and, thus, do not give rise to an employer’s obligation to provide FMLA leave. However, this has all changed as a result of the decision in Miller v. AT&T Corporation, in which a court refused to find that flu and other relatively minor illnesses are specifically excluded from FMLA coverage.

Miller v. AT&T Corporation

In Miller v. AT&T Corporation, 250 F.3d 820 (4th Cir. 2001), employer-AT&T appealed the trial court’s determination that Kimberly Miller, its former employee, was entitled to an award of damages because she had been denied FMLA leave. The company based its appeal on its contention that the illness for which Miller had sought FMLA leave — an episode of the flu — was not a “serious health condition” as defined by the FMLA. After a lengthy analysis, the appellate court ruled against AT&T, finding that FMLA leave should have been granted.

The factual description provided by the court revealed that Miller had been employed by AT&T for over six years, and during that time had been disciplined for excessive absenteeism on a number of occasions. The incident at issue in the litigation began when Miller called in sick on December 27th, and sought treatment from a physician on the following day. Miller’s physician conducted a number of blood tests and determined that she was suffering from the flu. The physician also advised Miller to take over-the-counter medications to alleviate her symptoms, issued Miller a work-excuse slip for December 28 through December 31st, and directed Miller to return for further evaluation on December 30th. On December 30th, more blood tests were performed which revealed some improvement in Miller’s condition. Miller was nevertheless directed to return two weeks later for a third blood test. On December 31st, Miller telephoned her physician and requested a work-excuse slip for January 1st, stating that she needed an additional day off of work; Miller’s physician granted this request.

After returning to work on January 2nd, Miller requested FMLA leave for December 27 through January 1st based on her physician’s determination that her illness had constituted a ” serious health condition.” AT&T denied Miller’s request for FMLA leave, concluding that her illness was not covered by the FMLA because, among other things, the flu is not generally considered to be the type of condition for which an employee is entitled to FMLA leave. Miller was subsequently terminated for excessive absenteeism, and filed an action alleging that she had been improperly denied FMLA leave.

The trial court determined that Miller’s flu had, in fact, constituted a “serious health condition” pursuant to the FMLA; specifically, Miller’s illness had required “continuing treatment” as required under the statute because she had been incapacitated for a period of three or more days and had received treatment from a health care provider on two or more occasions. The appellate court similarly chose to ignore previous case law which provided that ordinary conditions such as flu are not serious health conditions, finding instead that each employee’s claim must be analyzed based on the specific criteria set forth in the FMLA. The appellate court concluded that although conditions such as a cold or flu will not ordinarily qualify for FMLA leave because they will not satisfy the regulatory criteria for serious health conditions, if the statutory elements are satisfied a person who suffers from such ailments may be eligible for FMLA leave. Thus, despite the realization that its ruling would provide FMLA coverage for illnesses that Congress likely never envisioned would be protected, the court of appeals found that Miller had satisfied the stated criteria and was therefore eligible for FMLA leave.

What Does This Mean for California Employers?

Miller puts employers on notice that they may no longer rely on a laundry list of ailments which are excluded from FMLA protection when deciding whether to grant or deny requests for FMLA leave. Instead, each employee’s request must be analyzed on a case-by-case basis. If the stated criteria are satisfied (i.e., if a medical condition requires continuing treatment as described in the statute), an employer will likely have no choice but to authorize FMLA leave in order to avoid potential liability. Given the complexity of the issues which may be raised, employers are urged to direct any concerns regarding their obligations under the FMLA to legal counsel.