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FMLA TO CARE FOR FAMILY MEMBER
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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
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Forums » Topic Forums » Legal Forum » FMLA TO CARE FOR FAMILY MEMBER
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FMLA TO CARE FOR FAMILY MEMBER
posted at 5/18/2010 9:13 AM EDT
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Posts: 29
First: 6/9/2009 Last: 4/26/2011 |
Caring for the children of a seriously ill family member equates to caring for the seriously ill family member. It's as simple as that. Should there be court cases that contradict this interpretation, point us to 'em?
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FMLA TO CARE FOR FAMILY MEMBER
posted at 5/18/2010 9:36 AM EDT
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Posts: 1103
First: 3/16/2007 Last: 8/19/2011 |
No it isn't and that is where you are misinterpreting the fioto decision. I would encourage you to read it again.
Some highlights for you: "Initially, the Court examined the provisions of the FMLA, which enables an employee to take up to twelve weeks of unpaid leave to "care for" a spouse, child, or parent if the spouse, child or parent has a serious health condition. In this case, the focus was on whether plaintiff had actually provided the requisite care to his mother so that his day off from work would qualify as FMLA leave." Please note the use of the words "care for". In this discussion that is the operative language, not simply visiting the hospital. |
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FMLA TO CARE FOR FAMILY MEMBER
posted at 5/18/2010 11:32 AM EDT
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Posts: 29
First: 6/9/2009 Last: 4/26/2011 |
Still, the Fioto judge writes, âFMLA does not cover absences that do not implicate giving physical or psychological care for a relative.â Nork4 and rrupert are straight on this perspective.
It appears to me that when a judge writes, âUnfortunately for Fioto, the record is completely devoid of any evidence that Fioto was needed to provide either physical or psychological care for his mother, even under this extremely generous reading of FMLA,â the decision was about providing care and that visitation to the hospital is not considered as providing care. The judge also writes, âBecause the language of the statute does not guarantee employees FMLA leave to visit [emphasis on visit] an ailing parent, it was incumbent on plaintiff to demonstrate that he was doing somethingâanythingâ to participate in his mother's care.â Fioto could not show that he/she was doing anything except visiting, providing no care for the seriously ill relative. In and of itself, I think the judge was reaching, trying to give a nod to the plaintiff but the plaintiff failed to provide some evidence of âcaring for' the seriously ill relative. The judge also used Brunelle v. Cytec Plastics Inc to indicate how offering comfort (psychological care) is a form of âcaring for.â Still, as nork4 and rrupert suggest, as does the Fioto judge, providing psychological care for a relative is a legitimate use of FML. Care for the children of a seriously ill relative translates into providing comfort to the seriously ill relative. |
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FMLA TO CARE FOR FAMILY MEMBER
posted at 5/18/2010 2:56 PM EDT
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Posts: 1103
First: 3/16/2007 Last: 8/19/2011 |
While I do not disagree with your assertion you are inserting a reason into the cause of Crickets employee that hasn't been provided. No evidence of that type of care has been offered. Simply that the employee wanted to take care of minor children while the wife was in the hospital.
Now any good HR person could counsel this employee on how to obtain the necessary medical support for this absence. Unless this person is somehow otherwise not eligible or, the care of the minor children amounts only to babysitting, then FMLA should be approved. If not, then regular absence without FMLA should be approved. But that information would have taken the conversation to a level different than the question asked. FMLA criteria should be rigidly defended by any organization in order to be able to effectively manage the program. This does not mean that other forms of LOA's or approved absences cannot be offered, just that absence under FMLA should be controlled more and not arbitrarily designated simply because we empathize with someone. Good discussion TC. Anything you'd like to add? |
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FMLA TO CARE FOR FAMILY MEMBER
posted at 5/19/2010 7:11 AM EDT
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Posts: 29
First: 6/9/2009 Last: 4/26/2011 |
Cricket57 wrote, âcertification form [it] says he needs to care for the children while his wife is in the hospital.â
The type of care is âbabysitting,â which I assert, provides comfort to the ailing spouse, which (the Fioto judge may agree) is providing psychological care to the ailing spouse. Itâs been pointed out that babysitting is probably not an FML covered event. Iâm asking where is the decision that would contradict the view regarding babysitting as an FML event, and basically the judge in Fioto appears to agree that babysitting could be a legitimate use because it provides comfort to the seriously ill spouse. Comfort in knowing that your husband is not scrambling around trying to figure out what to do with the kids. Comfort that assuredly a doctor will interpret as contributing to the well being and recovery of the patient. Comfort that I would not question should I have to give testimony regarding why we denied FML to a person babysitting in an effort to assure his ailing wife that everything is ok. Empathy, compassion or whatever, a good HR person would bring emotion into the consideration, as do juries. Appriciate the diversity in opinion⦠|
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FMLA TO CARE FOR FAMILY MEMBER
posted at 5/19/2010 7:21 AM EDT
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Posts: 562
First: 11/12/2009 Last: 9/14/2011 |
While I appreciate HRPro's vigorous defense of strict interpretation of FMLA, a case such as this is not one I'd care to defend in court. The issue is what constitutes "care" under FMLA. Given the hospitalization of the spouse, going down the definition path in this case is not a trip I'd care to take. And my reluctance would grow exponentially with the seriousness of the wife's condition. |
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FMLA TO CARE FOR FAMILY MEMBER
posted at 5/19/2010 7:49 AM EDT
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Posts: 1103
First: 3/16/2007 Last: 8/19/2011 |
I don't disagree Nork. I am simply stating that this one could.
My rule is usually the newspaper test. If it looks good for the company in the newspaper then do it. If it makes the company look bad, well....... But IMHO the employer could deny this. |
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