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ABCs Of The FMLA 8/30/2007
The Family and Medical Leave Act (FMLA) is one of the most complicated employment laws for HR professionals to administer. It's hard enough to determine whether the Act applies to an employee who requests leave because of his own serious health condition. It can be even more challenging when leave is requested to care for a new or sick family member.
ABCs of the FMLA
The FMLA generally provides that certain employers (companies that employ 50 or more workers) must allow an employee who has worked at least 12 months and 1,250 hours to take up to 12 weeks of unpaid leave for one of the following events:
the birth of a child or to take care of the newborn
placement of a child for adoption or foster care;
to care for a spouse, child, or parent with a serious health condition; or
the employee's own serious health condition that makes him unable to perform the functions of his job.
This article will focus on the first three situations. Those events involve an employee taking time off because a child is sick or has joined her family or because a close family member is ill.
Rock-a-bye baby
Both male and female employees may take leave for the birth and care of a newborn child. This type of leave has nothing to do with the medical condition of the newborn or the mother. The new mom and dad are simply entitled to take leave as a result of the birth of the child itself.
There are only three real limitations to this type of leave. First, the leave must be taken within a year of the child's birth. Second, it must be taken in a single block of full days off. In other words, Dad can't take leave three weeks after the birth of the child and then wait several months to take the remaining nine weeks. Similarly, this type of leave can't be taken intermittently or for partial days unless you agree to that arrangement. And finally, if Mom and Dad work for the same employer, they are entitled to a total of 12 weeks jointly.
The FMLA also requires you to grant leave when a child is placed with your employee for adoption or foster care. According to U.S. Department of Labor (DOL) regulations, FMLA leave may be used before the employee actually gets the child. She may take FMLA leave to attend meetings with an attorney, doctor's visits, and court appearances or to fly out of the country to pick up the child.
Are you my mother?
The FMLA allows employees to take unpaid leave to care for certain family members who are suffering from a "serious health condition." The law severely restricts the family members for whom leave can be taken, however. An employee can take leave "to care for" his spouse, son or daughter, or parent, but not for siblings, grandparents, or grandchildren. While it might seem that determining whether leave must be granted for a family member is straightforward, the definitions of "spouse," "child," and "parent" can make figuring out whether leave is required harder than it looks.
First, a "spouse" is either a husband or wife defined by the law of the state where the employee resides. That's a particular challenge for Delaware employers that have employees living in Pennsylvania. That state recognizes "common-law marriage," while Delaware doesn't. In addition, the FMLA doesn't include partners in a same-sex marriage or civil union. Indeed, federal law prohibits interpreting the FMLA to include such an arrangement.
The regulations define "child" as either a biological child, an adopted child, a foster child, a stepchild, a legal ward, or a child for whom the employee is standing in loco parentis (that's Latin for "in place of the parents"). In other words, the employee must have day-to-day responsibility for taking care of and financially supporting the child. The child must also generally be under 18 or incapable of caring for herself because of a mental or physical disability.
The FMLA regulations define "parent" to include the employee's biological parent or the person who stood in loco parentis to him when he was younger. As a result, an employee can have more than two "parents" for FMLA purposes. Employees must be granted leave to care for a biological parent as well as a grandparent or another person who stood in loco parentis when they were young.
Care bears
A recurring question seems to be, "What does it mean to care for a family member with a serious health condition?" The DOL regulations make it clear that "to care for" encompasses both physical and psychological care. As a result, the employee doesn't have to be providing only medical or hygienic care for a family member. Rather, the term also includes psychological comfort and reassurance to a child, spouse, or parent with a serious health condition who is receiving inpatient or home care.
The phrase "to care for" may also include transporting a family member to and from doctor visits. Finally, this type of leave may be taken on an intermittent basis. As a result, an employee may take FMLA to fill in for others who are normally caring for the family member or to make arrangements for changes in care like a transfer to a nursing home.
And they lived happily ever after
An employee's use of FMLA leave for family situations can create problems for the most experienced HR professional. Fortunately, most common questions can be resolved by referring to the DOL regulations.
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