Q.) An employee who is eligible for Family and Medical Leave Act (FMLA) leave has asked to use it to spend time with her father, who is in a nursing home but having difficulty settling in. He has dementia and will listen only to family members. Is this a qualifying event? She would not be the primary caregiver.
A.) The FMLA entitles an eligible employee to take up to 12 workweeks of job-protected unpaid leave to care for a spouse, son, daughter, or parent with a serious health condition. There is no requirement that the employee be the primary care provider for the individuals.
Under the FMLA, a “serious health condition” is defined as any illness, injury, impairment, or physical or mental condition that involves (1) any incapacity or treatment connected with inpatient care, (2) a period of incapacity of more than three calendar days and continuing treatment by a healthcare provider, (3) continuing treatment by a healthcare provider for a chronic long-term condition that is incurable or so serious that if untreated would likely result in incapacity of more than three days, or (4) prenatal care.
Further, “parent” is defined as a biological, adoptive, step, or foster father or mother, or any other individual who stood in loco parentis (in place of the parent) for the employee. The term, however, does not include parents-in-law.
The FMLA was passed to provide job protection for employees who need to take time off to deal with their own health needs or those of their immediate family. The regulations discuss certain circumstances that would provide FMLA coverage:
- Because of a serious health condition, a family member (as defined by the FMLA) is unable to care for her own basic medical, hygienic, or nutritional needs or safety or is unable to transport herself to the doctor.
- The Act covers providing helpful psychological comfort and reassurance to a child, spouse, or parent with a serious health condition who is receiving inpatient or home health care.
- It covers situations in which the employee may need to substitute for others who normally care for the family member or to make arrangements for changes in care, such as a transfer to a nursing home.
Congress actually recognized the changing nature of the American population, including the growing number of elderly Americans and the need for wage earners to provide care for both their children and their parents, as a reason for enacting the FMLA. Thus, there is little doubt the Act was intended to provide protection for employees in situations like the one you’re facing.
Of course, you should require and obtain medical certification before granting the leave. The FMLA says you can require documentation confirming the family relationship from an employee asking a treating physician to provide leave certification. In your case, the medical certification should verify the employee’s father is suffering from a serious health condition (dementia).
Confirmation of the relationship may be a simple statement from the employee that the individual is a family member or a legal document establishing the connection. Whatever documentation you require, be consistent to avoid any discrimination claims. Remember, the goal is not to place unreasonable burdens on the employee but rather to administer the law in good faith and with consistency.
While not an issue in your particular situation, as mentioned above, employers should be aware the FMLA provides leave for employees to care for an individual who stands in loco parentis to the employee. The individuals include persons who had day-to-day responsibilities to care for or financially support the employee. The label can apply even if the employee has a biological, step, foster, or other parent. Those kinds of situations can be tricky or abused by an employee, so use caution when determining whether FMLA leave should be granted.
In summary, if your employee provides the appropriate documentation, the father’s dementia will qualify as a serious health condition. Even if she isn’t the primary caregiver, providing comfort to her father while he’s being transferred or adjusting to a nursing home will entitle her to FMLA leave.
Reggie Gay, an attorney with Burr Forman McNair and editor South Carolina Employment Law Letter, may be contacted at rgay@mcnair.net.