Scenario 2: Steve, a mid-level manager for a software company, has several small children, one of whom is hospitalized with a serious health condition. Steve´s wife normally takes care of the couple´s children on a full-time basis, and at the moment, she´s spending lots of time at the hospital with the sick child. Steve has asked his employer for permission to take FMLA leave to tend to the healthy children at home, so that his wife can remain at the hospital with the sick child. Must the employer grant Steve´s leave request?
Most times, employees request FMLA leave for purposes that clearly are contemplated by the statute and regulations. However, workers also commonly request FMLA leave for reasons that fall outside the scope of the law. The FMLA allows eligible employees to take job-protected leave for reasons relating to their own serious health conditions. But the law also provides a leave entitlement to care for a close family member with a serious health condition, or for a new child.
One challenging situation employers face when fielding FMLA leave requests occurs when an employee seeks leave not to provide care for a family member with a covered "serious health condition," but instead requests leave to perform other tasks that are occasioned by a family member with such a condition. Below, we examine how the FMLA applies in such situations.
Initial Considerations
In the scenarios presented above, and in similar circumstances faced by employers every day, it is clear that many of the prerequisites for covered FMLA leave are present. For example, the two cases appear to include an "eligible employee," a family member whose relationship is such that they may justify leave for the employee in some circumstances, and the presence of a "serious health condition" within the meaning of the statute. But what is problematic about these situations is the reason for requesting FMLA leave.
Specifically, rather than providing care for an individual who has an FMLA-qualifying serious health condition, the employee is seeking to perform some of the duties usually handled by either the individual with the covered condition, or a spouse who is attending to that individual. So, if the FMLA leave were granted in these cases, would the employee be taking leave for a valid FMLA reason?
On one hand, it is not difficult to see the employee´s position. He or she likely would argue that they were merely performing alternative functions of the covered family member, all of which relate to or are triggered by the covered health condition. Therefore, in the above example where the parents have a child in the hospital, it seems clear that, from the employee´s view, he should be able to take FMLA leave to provide or assist with caring for that individual, given the appropriate medical certification. Why should the fact that the assignment of "hospital duty" to the spouse, and the "home duty" to the employee change the outcome?
Similarly, in the first scenario, where the employee is faced with a hospitalized parent and a need to care for her siblings, the employee´s time spent in the hospital assisting with the care of her parent might be recognized as being eligible for FMLA leave. So, why shouldn´t the assumption of duties temporarily relinquished by the parent with a serious health be a valid reason for taking FMLA leave?
A reasonable starting point in analyzing these questions should be the terms of the FMLA statute and the FMLA implementing regulations issued by the U.S. Department of Labor (DOL). Each of these sets of requirements describes several specific purposes for which employees can take protected leave.
Both the FMLA and DOL´s implementing regulations provide that employers must grant job-protected leave to eligible employees for the birth of a son or daughter and to care for a newborn or newly adopted child. The statute and the rules also mandate that leave be given because of the employee´s own serious health condition that makes him or her unable to perform the essential functions of the job, or because the employee is "needed to care for" the employee´s spouse, son, daughter or parent with a serious health condition (29 C.F.R. #&167 825.112).
DOL Regulations
With respect to the questions posed in the above examples, the DOL rules provide some guidance on these issues in 29 C.F.R. §825.116. That portion of the rules discusses what is meant by "needed to care for" a covered family member.
According to the rules, providing care extends to cases where the employee´s family member is unable to care for his or her own basic needs or safety, or is unable to transport himself or herself to a doctor, among other circumstances. "To care for" also includes occasions where employees provide psychological comfort and reassurance that would be beneficial.
With regard to using intermittent leave for such purposes, the rules (29 C.F.R. § 825.116(c)) allow for situations where the family member´s condition is intermittent, and situations where the need for the employee´s assistance is intermittent. Perhaps most relevant to the question posed in the above examples is the rule´s statement that the term "needed to care for" includes situations where the employee may be needed to fill in for others who are caring for the family member, or to make arrangements for changes in care, such as transfer to a nursing home (29 C.F.R. § 825.116(b)).
Addressing the Two Scenarios
Looking strictly at the purposes justifying protected leave under the FMLA, it might appear that in Scenario 2 above leave to care for healthy children (because the normal caregiver is attending to another child with a serious health condition) would not be covered as a valid reason for taking FMLA leave. After all, the purpose of that leave, it might be said, is not to provide care for the sick relation; it is to provide care for others without conditions covered by the FMLA.
But in one reported court decision, Briones v. Genuine Parts Co. d/b/a/ Napa Auto Parts, 8 Wage & Hour Cas. 2d 153 (E.D. La. 2002), one federal court concluded that, under these circumstances, the FMLA was broad enough to encompass the employee´s activities (i.e., caring for healthy children while his young son was hospitalized with a serious health condition). While that ruling was stayed, pending the question´s review by the 5th U.S. Circuit Court of Appeals (which has not issued a ruling in the case), the Louisiana court´s consideration of these circumstances and the statute´s broad policy goals should be noted by employers.
To Care for Siblings
In the other situation described above (Scenario 1), where an employee who needs to care for siblings when their parent (the normal caregiver) experiences a serious health condition, the language of the law and regulations again appear to be too narrow to provide FMLA protection to the leave. Care for healthy siblings does not on its face seem to directly relate to the act´s requirement that the individual cared for have a "serious health condition." However, at the same time, it should be noted that in such circumstances, a changed fact, such as the initial, legal placement of a child or children with the employee for purposes of foster care, may change whether or not the leave can be considered FMLA-protected leave.
In conclusion, the issue of whether FMLA leave can be taken to cover the duties of a sick family member is one that has not been exhaustively explored by courts. It is conceivable that some bodies may look at the question with an eye on the broad social policies that lay behind the enactment of the FMLA (as did the trial court in the Briones case). Employers should consider such questions of coverage and eligibility carefully, with the assistance of knowledgeable legal counsel. In such analyses, it also is important to remain cognizant of the provisions of applicable state or local leave laws, which may be more expansive in terms of providing job-protected leave to employees for reasons relating to the needs of relatives suffering from serious health conditions.
This article was excerpted from the Family and Medical Leave Handbook by Thompson Publishing Group. More information on the Handbook is available at www.thompson.com/libraries/wagehour/time/index.html.