Help! Intermittent leave is driving us
nuts. We have a number of employees
who are taking intermittent leave to “care for” relatives.
We have two questions:
visit with the family member with a serious health
condition–even if they are not providing any
actual care?
take turns helping the ill family member? One of
our employees has other family in the area, but he
provides all the care for his mother–and he misses
a lot of work to do it.
— Steve G, HR Manager in San Diego
Our HR Management & Compliance Report: How To Comply with California and Federal Leave Laws, covers everything you need to know to stay in compliance with both state and federal law in one of the trickiest areas of compliance for even the most experienced HR professional. Learn the rules for pregnancy and parental leaves, medical exams and certifications, intermittent leaves, required notices, and more.
When a new client asks a question that
implicates the federal Family and Medical
Leave Act (FMLA) and its California equivalent, the
Family Rights Act (CFRA), I always start with two basic
questions:
- Is the employer covered (employs 50 or more
employees within 75 miles)? - Is the employee eligible for coverage (employed for
at least 12 months, worked a minimum 1,250 hours
during the previous 12 months, and works at a facility
with at least 50 employees within 75 miles)?
Assuming the employer is covered by the FMLA and
the employee is eligible, an employee is entitled to
FMLA leave to care for his or her spouse, son, daughter
or parent with a serious health condition. (CFRA
goes beyond caring for a spouse to also include caring
for a domestic partner and/or the partner’s child).
Even if the healthcare provider certifies that the family
member has a serious health condition, the employee
is entitled to FMLA leave only to “care” for that family
member. For example, in Tellis v. Alaska Airlines,
Inc., Charles Tellis sued his employer, Alaska Airlines,
for an FMLA violation when it terminated him for
unauthorized work absences. He took a leave to care
for his wife during a difficult pregnancy. During the
leave, Tellis’s car broke down, and he flew cross-country
to drive another family vehicle home, regularly calling
his wife from the road. Alaska, which had never
received completed forms from Tellis for the FMLA
leave, terminated Tellis’s employment when he didn’t
show up for work after using five days of vacation and
holiday leave. Tellis argued he was on an FMLA-protected
leave, in part because he offered reassurance to
his wife during his long drive that the family would
have a functioning vehicle. But the federal Ninth
Circuit Court of Appeals (covering the western states
including California) disagreed, holding that Tellis’s
actions did not amount to the requisite “caring” for a
family member as defined by the FMLA.
In response to Steve’s question about an employee
taking leave to “visit” a sick family member, unless
the employee can provide medical certification that
his or her presence is needed to care for the family
member, Steve’s company may lawfully deny the leave
request. However, once proper medical certification is
provided, the employer has to grant the request. (The
Certification of Health Care Provider Form has a series
of questions about the family member’s need for care.)
As for the second part of Steve’s question, I’ll
assume that the employee has furnished a medical certification
stating that the employee (who presumably is
eligible for FMLA leave) needs intermittent time off to
care for an ill family member, though other family
members are also available to care for the family
member.
FMLA offers only limited exemptions. For instance,
spouses employed by the same employer may be limited
to a combined total of 12 workweeks of family
leave to care for an employee’s child or parent who
has a serious health condition.
In addition, an employer may lawfully deny leave
to salaried eligible employees who are “key employees”
if this is necessary to prevent substantial and
grievous economic injury to the employer’s operations.
A key employee is a salaried FMLA-eligible employee
who is among the highest paid 10 percent of all the
employees working for the employer within 75 miles
of the employee’s worksite.
Unless the employee in the above example has a
spouse also working for the same employer and/or the
employee requesting the leave is a key employee and
granting leave would cause substantial and grievous economic
injury, the employer must afford him or her FMLA
leave despite there being family members who may also
be available to care for that family member. In other
words, the choice of who cares for the family member
belongs to the employee and not the employer.
Allen M. Kato, Esq. is an associate at the San Francisco
office of law firm Fenwick & West.