- The Washington Times - Monday, May 28, 2001

Employees' cases of common flu can require employers to give the workers up to 12 weeks of unpaid time off while they recover, a federal appeals court in Virginia has ruled.

The case involved AT&T; Corp. account representative Kimberly Miller, who was terminated after missing a week of work while she recovered from the flu. She won her case after arguing the federal Family and Medical Leave Act forbids employers from punishing workers for taking time off work while they recover from illness or injury, even if it is the flu.

The case was closely watched by employment-related organizations. The Communications Workers of America labor union filed a brief supporting Miss Miller. The U.S. Chamber of Commerce and the nonprofit employers' group Equal Employment Advisory Council filed briefs supporting AT&T.;

"We're very concerned that they took such a broad view of the scope of the law," said Ann Reesman, the Washington-based general counsel for the Equal Employment Advisory Council. "The problem is that it extends federal protection to a whole bunch of minor illnesses, like the common cold."

Miss Miller worked for the company for seven years. Several times she took days off because of illness. AT&T; cited excessive absenteeism as the reason for her termination.

The Family & Medical Leave Act requires employers to give employees up to 12 unpaid weeks of leave per year for a "serious health condition," which means an illness or injury that prevents employees from working while they are receiving medical treatment.

The trial court agreed with Miss Miller that her flu should allow her to take time off work without penalty from AT&T.; She was given back pay that she would have earned if she had not been terminated.

AT&T; appealed to the federal Fourth Circuit Court of Appeals, based in Richmond. The crux of the company's argument was that common flu is not a "serious health condition" that would allow employees to invoke the Family and Medical Leave Act.

A main issue was whether Miss Miller's flu required medical treatment. Only illnesses that require "continuing" medical treatment qualify for leave under the Family & Medical Leave Act.

"Continuing treatment," as defined by the Labor Department, refers to incapacitation for more than three consecutive calendar days and treatment by a health care provider, either two or more times, or once with an ongoing supervised treatment.

Miss Miller visited her doctor twice, first for an initial diagnosis and prescription and a second time for follow-up and a blood test.

The appeals court said the fact Miss Miller could prove she had flu during the time she was off work, and that she sought treatment from her doctor twice, was enough to invoke the job protections of the Family and Medical Leave Act.

"AT&T; is correct, of course, that the legislative history indicates that in enacting the FMLA Congress was focused on 'major' illnesses, such as cancer, rather than relatively minor ailments," the appeals court said.

However, there is nothing in the statute or the legislative history that specifically mentions flu as being excluded from coverage under the Family & Medical Leave Act.

"FMLA defines 'serious health condition' broadly and does not include any examples of conditions that either do or do not qualify as FMLA serious health conditions," the court said.

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