Leave Policy/Compliance

Ask the Expert: Must Employee Be ‘Primary Caregiver’ to Take FMLA Leave for Family Member?

We have an employee who would like to take FMLA leave to care for his father who has been diagnosed with cancer. Does the employee have to be deemed his father’s “primary caregiver” in order to use FMLA for this purpose?

FMLA leave family care

The adult son does not have to be the primary care caregiver in order to take leave under the Family and Medical Leave Act (FMLA) to care for his father.

Under the FMLA, an eligible employee is entitled to take up to 12 workweeks of unpaid leave during any 12-month period to care for a spouse, son or daughter, or parent who has a serious health condition.

You may require that the employee provide certification from a health care provider “in a timely manner” of the serious health condition of the parent, including a statement that the employee is “needed to care for” the family member.

According to the FMLA regulations, “needed to care for” may encompass both physical and psychological care.  For example, it includes situations where, because of the serious health condition, the family member is unable to care for his own basic medical, hygienic, or nutritional needs or is unable to transport himself to the doctor.

It also includes situations where the son is needed to provide “psychological comfort and reassurance” for a parent who is receiving inpatient or home care and where the employee may be needed to substitute for others who normally care for the family member.

Further, the employee does not have to be the only individual or family member available to care for the family member.  See 29 C.F.R. sec. 825.124.