DOL Opinion Letter says maybe

Yes and no, according to the U.S. Department of Labor (DOL). In a December 12, 1996 opinion letter issued by the DOL, the agency noted that ordinarily, conditions such as colds and flu do not qualify as serious health conditions. However, the agency stated that in cases where the illness meets DOL's serious health condition test-i.e., causing incapacitation for more than three days and requiring a regimen of continued medical treatment-it should be regarded as serious, thereby triggering FMLA coverage.

AT&T loses termination case over flu

In the case of Miller v. AT&T (No. 2:98-0808, Southern District of West Virginia, August 9, 1999) AT&T learned the hard way that the flu can be a serious health condition.

Employee Miller left work early one day because of illness and thereafter was out of work for a week with a high fever and other flu-like symptoms. Two days into her absence she went to see a doctor who diagnosed a severe case of flu. The doctor saw her once more before her return to work.

Upon her return, Miller presented a completed medical certification form in which her doctor certified that she had a serious health condition, provided the dates of her illness, and stated that she had refrained from working on doctor's orders. AT&T, however, stated that the certification was not adequate and that the flu did not constitute a serious health condition.

Two days later Miller was terminated for unsatisfactory performance. She sued, claiming a violation of the FMLA.

The court agreed with Miller, finding that her doctor had completely filled out the employer-provided form, and that the employer's remedy, if it questioned the validity of the doctor's conclusion, was to request a second opinion. The court found that AT&T's termination of Miller was a violation of her FMLA rights.