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The Flu and the FMLA

With recent pandemic flu outbreaks, some employers have grown confused as to which types of employee absences from work may be protected by the federal Family Medical Leave of Absence Act (FMLA).

First of all, FMLA protection is entitled to employees working for a covered employer and who have worked for their employer for at least 12 months, for at least 1,250 hours over the previous 12 months, and at a location where at least 50 employees are employed by the employer within 75 miles. Such employees are provided up to 12 weeks of job-protected, unpaid leave during a 12-month leave year for specified family and medical reasons, which may include the flu where complications may occur.

Employers should consider the following examples to avoid discriminatory practices:

• Employees who are infected. An employee who is infected may be protected under the FMLA under certain circumstances when health complications arise. Be sure to obtain a certified note from the employee's attending physician.
• Employees who are not infected. An employee who wishes to stay home because he or she simply does not want to be exposed to the flu from others at the workplace is not protected under the FMLA.
• Employees with certain family members who are infected. An employee with an infected family member (i.e. spouse or child) is not protected under the FMLA unless a flu-related complication results and thus creates a "serious health condition" as defined by the FMLA.
• Enforced company policies. If the company has an Employee Handbook policy requiring employees to go home sick when they show symptoms of an illness reaching pandemic levels such as the H1N1 flu, that time off may qualify as FMLA-protected leave, if a serious health complication develops.

As an employer, it is crucial to establish flexible sick leave policies that are non-discriminatory. Whether an absence should be paid or unpaid depends much on your company's relevant policies and employment contracts. If employees must miss work, you may provide alternative options such as telecommuting. In addition, consider contacting an HR professional regarding any state-specific regulations that may require stricter guidelines for pandemic sick leave circumstances.

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