Illness vs. Serious Health Condition: What kinds of absences are FMLA protected and when?
Cold and flu season is upon us – but how sick is too sick to work? And, what kind of illness do you have in order to be eligible for and protected by FMLA leave?
While some municipalities and states are enacting legislation that provide workers with paid and protected time off work for minor illnesses, they are the exception to the rule. Generally, including in Wisconsin, employers have no obligation to provide their workers with any time off –paid or unpaid – for any reason, even if the employee is too sick to work. However, if an employee is suffering from a serious health condition and has worked for his or her employer for at least 1,250 hours and twelve (12) months, and if the employer employs more than 50 employees, he or she may be eligible for up to twelve weeks of protected, unpaid leave under the Family Medical Leave Act. Wisconsin’s version of FMLA also provides less leave (up to six weeks) under similar terms, although an employee must only work a minimum of 1,000 hours in the year preceding the leave. Leave under WFMLA is not in addition to federal FMLA; they run concurrently. A comparison of FMLA and WFMLA is available here.
Eligibility for FMLA leave due to your own illness, or to care for a close family member (parent, minor child, spouse) with an illness depends on whether the illness, injury, or condition that is causing the absence is a serious health condition. A serious health condition is an illness, injury, impairment, or physical or mental condition that involves inpatient medical treatment; or requires an absence of more than three calendar days from work and daily activities and involves continuing treatment by a health care provider. Serious health conditions chronic, long-term illnesses or conditions that cause intermittent incapacity and requires ongoing medical treatment, like cancer, asthma, diabetes, or epilepsy, as well as some mental health disorders. Pregnancy (and absences related to pregnancy or for prenatal care) is also an FMLA-protected condition, as are injuries resulting from a serious accident that require ongoing care and rehabilitation. Contagious but routine colds and even an uncomplicated (but miserable!) bout of the flu are not usually serious health conditions.
It is important that, whenever possible, an employee with a serious health condition that may cause him or her to be absent from work obtains approval for FMLA leave before the need for absences arises.
Finally, note that this post addresses only the kinds of conditions that may be FMLA protected. While some of FMLA’s requirements are briefly addressed in this post, there are other eligibility and documentation requirements that must be met for FMLA-approved leave. In addition, not all employees and employers are covered by the FMLA laws.