Many employers are seeing an increase in employees requesting time off to care for their aging parents. Because that trend is likely to continue, you should be prepared to manage such requests, particularly when the Family and Medical Leave Act (FMLA) applies.
The FMLA permits eligible employees to take time off to “care for” a son, daughter, spouse, or parent with a serious health condition. Sometimes employers overlook the “care for” element and assume that if the employee has a covered family member with a serious health condition, the employee is, of course, providing care for him. However, the legal cases interpreting this requirement indicate otherwise.
In all FMLA cases, courts scrutinize the facts of each situation. As a result, you need to obtain detailed information so you can monitor FMLA leave and evaluate whether the employee is truly providing care for a family member or simply using an unfortunate circumstance as an opportunity to go on a spring break trip.
It’s Your Duty to Gather the Relevant Facts
You should ask what the primary purpose for the employee’s leave is. Merely visiting a sick family member doesn’t satisfy the “care for” standard. Inquire about whom the employee is caring for so you can determine if that individual is a covered family member under the FMLA.
You should also ask how the employee will be providing care to the family member. That will help you understand whether the employee is providing physical or psychological care or both. The FMLA regulations indicate that “care for” encompasses both types, but sometimes the analysis for each type of care is different. Keep in mind that the employee need not be the only individual or relative available to care for the family member.
Ask where the family member is located or where the care will be provided. Case law reveals that those two locations aren’t always the same, even though a reasonable person might assume that’s the case. Merely having telephone conversations with the ill family member is likely insufficient. However, talking to the family member’s physician or consulting with other family members about medical decisions may be considered providing “care” in some circumstances. Employees are more likely to be eligible for FMLA leave if they are in close contact with the seriously ill family member.
Providing care includes situations where “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.” It also includes “providing comfort and reassurance [that] would be beneficial to a child, spouse, or parent with a serious health condition who is receiving inpatient or home care.”
By contrast, performing household chores such as mowing the lawn, shoveling snow, doing laundry, cleaning, and moving a family member from one house to another wouldn’t generally constitute caring for her, except in limited circumstances.
It’s possible to imagine a scenario in which moving a parent from one home to another may satisfy the “care for” element—for example, if the parent has asthma and the former home has black mold. Likewise, shoveling snow may be providing care for a depressed parent. Accordingly, you should weigh the employee’s response to your inquiries against the family member’s serious health condition.
You should also ask the employee if he is substituting for others who normally provide care for the family member or if he is making arrangements for changes in care. If so, that will satisfy the “care for” requirement. It’s important to understand that an employee may be caring for an unconscious or unresponsive family member who is also under the care of qualified medical staff. For example, the employee may be providing psychological comfort and support and managing the family member’s medical decisions.
Asking critical questions every time an employee requests leave to care for a family member will help you manage these particular FMLA leave requests and curtail fraud and abuse. Remember, the “care for” element of the FMLA is broad, but it isn’t unlimited. Consult with a labor and employment attorney to determine if that element has been satisfied based on the facts you have carefully and thoroughly obtained from your employee.