Q: Can an employee take FMLA leave due to a cold or the flu?

A: Yes, if it otherwise meets the definition of a "serious health condition."

This question is confusing to many employers, and even some folks who hold themselves out FMLA experts. The source of this confusion is a misleading passage in the FMLA rules:  

“Ordinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal diseases, etc. are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave.

Reading this, one might assume that when an employee calls in sick with the flu, there's no need to worry about FMLA leave. That, unfortunately, is the wrong answer.

The passage above is included in the FMLA rules as an example only. It in no way limits the definition of "serious health condition." If an FMLA-eligible employee has a bad case of the flu, is incapacitated for more than three full consecutive days, and goes to the doctor and receives a prescription for antibiotics, that employee is entitled to FMLA leave. The same is true regardless of the condition, whether it is a cold or sinus infection or ear ache. If the condition meets the criteria in the rules, then it is a "serious health condition" and the FMLA applies.

This conclusion leads to an obvious question: do employers need to go through the whole FMLA process every time an employee comes down with the sniffles? Not quite. For more on that, check out FMLA Insights Podcast No. 3.