TSLF Employment Blog

How Does the FMLA Define Caring for Family Members?

The federal Family and Medical Leave Act (FMLA) allows a covered employee to take up to 12 weeks of leave to provide care for an immediate family member with a serious health condition. There’s no limitation in the statute as to what is involved in the “care” of that person. If an employer tells you that it will only allow time off for you to help with doctor’s visits, trips to hospitals, or active involvement with medical treatment in some way, that’s not accurate.

Care for a Family Member

The FMLA states, in part, that “an employee shall be entitled to a total of 12 administrative workweeks of leave during any 12-month period for one or more of the following…to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.”

The statute states that an employer can ask an employee requesting FMLA leave to obtain a certification from a treating physician. That certification must verify that a family member is suffering from a serious health condition and needs someone to care for him or her. The regulations about these certifications discuss the circumstances that are covered, including the following:

situations where, for example, because of a serious health condition, the family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor. The term also includes providing psychological comfort and reassurance which would be beneficial to a child, spouse or parent with a serious health condition who is receiving inpatient or home care… The term also includes situations where the employee may be needed to substitute for others who normally care for the family member…or to make arrangements for changes in care, such as transfer to a nursing home.

Employers Don’t Always Understand FMLA Leave

An employer may have many misconceptions about the FMLA. It can be a complicated law, and an employer may have any number of employees seeking FMLA leave (correctly or not) for any number of circumstances. Employers need to educate themselves about the law and how it’s applied. The Department of Labor (DOL), the government agency charged with enforcing the FMLA, has a number of fact sheets that are helpful to both workers and management, and an entire section of its website is devoted to helping employers comply with its laws. When in doubt, an employer should contact an attorney for help.

Despite all of these resources, many of them provided at no cost, employers still often get the FMLA wrong, and employees suffer as a result. One example was the mother of an autistic child in Wisconsin, who ended up losing her job because her employer violated the FMLA. She filed and won a lawsuit that was recently upheld on appeal.

The plaintiff, Tracy Wink, started working for her ex-employer, Miller Compressing Co., in 1999. Because of her son’s autism, Wink asked for and received intermittent FMLA leave. For a time, her son was in daycare two days a week; Wink’s mother supervised him on other days. In February 2012, though, Wink’s son became violent because of his condition, and his daycare provider expelled him.

Since her mother was not available, Wink asked to work from home those two days each week. The company, showing that it was both reasonable and flexible, allowed her to do so. They agreed that if Wink couldn’t work full time during those days, the hours she missed would be considered part of her FMLA leave.

In the summer of 2012, the company suffered financial problems and ceased its flexibility. It instituted a new rule that there could be no working from home; full-time employees needed to spend all of their working hours at the company. On a Friday in July, Wink was told of the change. She was also told that she had to find other arrangements for her son by Monday.

Wink came to work that Monday and explained to the company’s human resources department that she couldn’t find care for her son over the weekend. She was told that the FMLA didn’t cover her situation. If she didn’t work that day, the company would consider her to have quit voluntarily. The appellate court found that the “human resources officer to whom she explained all this told her falsely that the FMLA covers leave from work only for doctors’ appointments and therapy.” Wink left the office, and the company marked her official last day of work as the prior Friday.

Wink sued her former employer based on a number of legal claims, including retaliating against her for asking for FMLA leave and interfering with her FMLA rights. A jury agreed with the retaliation claim but not the interference claim. The company appealed its loss, but the U.S. Court of Appeals for the Seventh Circuit upheld the jury decision.

Summing It Up

It’s not uncommon for an employer that’s doing well to be fairly open-minded and reasonable when it comes to FMLA leave. But that same employer, if facing financial troubles, can suddenly go in the opposite direction. What management doesn’t understand is that the FMLA applies no matter how profitable the company may or may not be, regardless of whether it’s short-staffed and very busy.

If you find yourself in a similar situation, the FMLA may help you. If you need to stay home to care for an immediate family member because of his or her serious health condition, remember the following points.

  • Care may simply be overseeing and supervising the person, keeping the person safe, and taking responsibility for basic needs.
  • You need not be actively involved in medical treatment, attending medical appointments or related meetings, or providing transportation for such activities (though all those would be covered too) to qualify for FMLA leave.
  • If your employer claims that the FMLA requires some kind of active participation on your part to qualify for leave, try to educate it as well as you can, but you can only do so much.

If that doesn’t work, contact our office. We can discuss what’s going on, help you understand what the FMLA really covers, and advise you about what you can do to protect your rights and how we can help you.

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