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Is it legal for a facility to require FMLA papers be completed for a day or two off due to an illness?

Monday March 11, 2013
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Dear Nancy,

At the hospital where I work, we earn paid sick time, much like vacation time. If you call in sick, it is counted as an occurrence, but you still get paid. We have been told if we do not want this to be counted as an occurrence, we must have our physician fill out Family and Medical Leave Act papers. My understanding of FMLA is that it applies only to a chronic illness, not a stomach bug or the flu. Is this legal?


Nancy Brent replies:

Dear Linda,

It is not clear exactly how this request by your employer came about. It certainly sounds a little strange because the Family and Medical Leave Act has specific requirements that must be met before it can even be considered when an employee requests time off of work.

Generally, the FMLA can be used to allow eligible employees to take up to 12 weeks of unpaid leave a year:
• to care for a newborn or newly adopted child
• if the employee has a serious health condition that does not allow the employee to perform his or her essential job responsibilities
• if the employee's child, spouse or parent has a serious health condition and needs care by the employee.

It is true that in certain situations, the 12 weeks may be taken intermittently or a reduced work schedule can be developed. But it does not sound like any of these requirements apply to a request for a day or two off of work because the flu or a bad cold.

It might be wise to check with the human resources department at your facility. You also can go to the U.S. Department of Labor's website to learn more about the FMLA (www.dol.gov/whd/fmla). A consultation with a nurse attorney or attorney in your state who works with employees also would help clarify this request. The attorney also can explain how to challenge it successfully, if he or she decides the request is suspect.


Nancy J. Brent, RN, MS, JD, is an attorney in private practice in Wilmette, Ill. This information is for educational purposes only and is not intended as legal or any other advice. The reader is encouraged to seek the advice of an attorney or other professional when an opinion is needed.