Michael J. Fischer's Archive

There’s nothing like sitting in your work cubicle, in the dead of winter and during the middle of a swine flu epidemic, while listening to your nearest coworker coughing her heart out. Sympathy can quickly turn to resentment as jumpy employees around her worry that every cough is sending battalions of pesky microbes marching off in their direction.

Unless sick employees stay home, those microbes could decimate a formerly healthy workforce — just as business is starting to pick up around the globe. Can employers make such employees stay away so that an injury to one doesn’t become an injury to all?

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In the last installment of our swine flu series, we explained why swine flu will frequently not qualify as a “serious health condition” under the Family and Medical Leave Act. And because swine flu is ordinarily a short-term condition, it’s also unlikely to qualify as a “disability” under state or federal disability law.

That means that swine flu will usually not be a “legally protected absence” under employer attendance policies — which in turn means that employees could accumulate attendance occurrences or points for absences related to swine flu. An employee accumulating enough of those points under a no-fault attendance system — which assigns a point regardless of the reason for an absence, unless it is a legally protected absence — is an employee looking at the prospect of discipline.

Disciplining an employee who is out because of the swine flu? The very idea strikes most employees and even many employers as preposterous.

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You can rest assured that if you ask any randomly selected 100 people whether the swine flu is a serious health condition, 99 will look at you as though you’re crazy and say “of course.” The lone sheep will be an employment lawyer, and that’s because of the Family and Medical Leave Act (“the FMLA”).

The FMLA provides eligible employees with up to 12 weeks of unpaid, job-protected leave for a variety of reasons, including the “serious health condition” of an employee or the employee’s spouse, parent, or child (ordinarily only when the child is under the age of eighteen).

But the flu — even a severe flu — ordinarily isn’t an FMLA serious health condition, which requires that the flu last more than three consecutive days and involve either two visits to a doctor or one visit, coupled with “a regimen of continuing treatment.” Being told by a doctor to take over-the-counter medication, rest, and drink plenty of fluids won’t cut it; under the Department of Labor’s FMLA regulations, an FMLA-qualifying regimen ordinarily requires at least a prescription for drugs or therapy.

In the run-of-the-mill swine flu case,

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