Forums
FMLA TO CARE FOR FAMILY MEMBER
Legal Forum
FMLA TO CARE FOR FAMILY MEMBER
Discuss employment-law issues such as family leave, overtime, disabilities law, harassment, immigration and termination.
We have an employee that requested leave because his wife was in the hopital. when we received his certification form it says he needs to care for the children while his wife is in the hospital. Shoul
0
Cat:Topic ForumsForum:ForumId54
Cat:Topic ForumsForum:ForumId54Discussion:DiscussionId36385
Forums » Topic Forums » Legal Forum » FMLA TO CARE FOR FAMILY MEMBER
|
FMLA TO CARE FOR FAMILY MEMBER
posted at 2/10/2010 2:24 AM EST
|
Posts: 13
First: 2/18/2009 Last: 9/20/2010 |
We have an employee that requested leave because his wife was in the hopital. when we received his certification form it says he needs to care for the children while his wife is in the hospital. Should this be approved for FMLA? |
|
|
FMLA TO CARE FOR FAMILY MEMBER
posted at 4/1/2010 7:46 AM EDT
|
|
Posts: 3
First: 4/1/2010 Last: 4/1/2010 |
FMLA is to care for a seriously ill family member; however, every company I have worked for grants FMLA for a family member in the hospital (even though technically the hospital is propviding the care and not neccessarily the employee). You may want to remind the employee of the language of FMLA, but I would not deny the request. |
|
|
FMLA TO CARE FOR FAMILY MEMBER
posted at 4/1/2010 7:56 AM EDT
|
|
Posts: 1103
First: 3/16/2007 Last: 8/19/2011 |
There is no legal requirement under the Federal FMLA to approve this leave. That statute says "to care for a seriously ill family member" and in this instance the children, who need the care, are not seriously ill. It appears they simply need baby sitting. That is what chiold care facilities or other paid care is for. Further, it is important to note that should he attempt to try the "I am going to care for my wife" card that the law defines care as something other than visiting. Consequently he would have to provide actual care to her.
With those niceties out of the way there is nothing to preclude you from approving it. |
|
|
FMLA TO CARE FOR FAMILY MEMBER
posted at 4/1/2010 7:58 AM EDT
|
|
Posts: 1103
First: 3/16/2007 Last: 8/19/2011 |
A legal cite to defend against the "she is in the hospital" argument is Fioto v. Manhattan Woods Golf Enterprises, LLC, U.S. District Court, Southern District of New York, No. 01, Civ. 5383 (CM), 7/2/03. |
|
|
FMLA TO CARE FOR FAMILY MEMBER
posted at 4/1/2010 9:46 AM EDT
|
|
Posts: 2146
First: 2/15/2006 Last: 9/14/2011 |
There isn't even a space on our FMLA form for an employee to write the reason. They either pick one of the standard 5 or pick non-FMLA leave. This employee would have just picked the spouse with a serious medical condition and provided medical certification of her being in the hospital. He never would have had to tell us it was to take care of the children during that time period.
I'm not so sure the argument could be made that this does NOT fall under FMLA because the underlying reason for the need is the wife's serious medical condition and hospitalization. Not sure you can't find 3 instrumental activities that the wife can not do (cooking, shopping, maintaining the residence, etc) from Section 825.122 " "Incapable of self-care" means that the individual requires active assistance or supervision to provide daily self-care in three or more of the "activities of daily living" (ADLs) or "instrumental activities of daily living" (IADLs). Activities of daily living include adaptive activities such as caring appropriately for one's grooming and hygiene, bathing, dressing and eating. Instrumental activities of daily living include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, using a post office, etc." Also Section 124 states:"The medical certification provision that an employee is "needed to care for" a family member or covered servicemember encompasses both physical and psychological care. It includes 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." I think this could easily fall under psychological comfort and reassurance...maybe it's because I am a mom and I know if I were hospitalized I would be very very worried about my children and their care...especially if I was a stay at home mom who was normally responsible for their care. I think I would advise the employee to revise his reason for need. Because to deny it because he didn't state it exactly like the regulations state might bring about a court case that the employer would rather not have to explain to a jury why they split hairs....And it goes back to the employer being responsible for knowing the FMLA need even if the employee doesn't specifically ask for it. |
|
|
FMLA TO CARE FOR FAMILY MEMBER
posted at 4/1/2010 10:37 AM EDT
|
|
Posts: 562
First: 11/12/2009 Last: 9/14/2011 |
I'm inclined to agree with rrupert on this although after reading Fiota as HRPro suggested I think he's technically correct with his comments.
Unless I've got a problem with FMLA abuse, I don't think I'd question this one too closely and run the risk of having a couple of lawyers generating revenues at my expense. |
Forums » Topic Forums » Legal Forum » FMLA TO CARE FOR FAMILY MEMBER
