June 12th, 2018 by Nancy Van der Veer Holt at Ford Harrison LLP
This blog is an excerpt from our book An Employer's Guide to FMLA and ADA, authored by Nancy Van der Veer Holt at Ford Harrison LLP. For more state specific leave information, go to the Products tab above and subscribe to the Human Resources Manual for your state.
FMLA coverage for employers
As with other employment-related statutes, the FMLA applies only to certain employers. Under the FMLA, an "employer" is:
any person engaged in commerce or in any industry affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year, including:
any successor in interest of an employer
any person who acts, directly or indirectly, in the interest of an employer to any of the employer’s employees (NOTE: Several courts have concluded that supervisors can be held individually liable under this provision of the FMLA.)
any public agency.
The following entities are also covered by the FMLA:
those entities which meet the “joint employment” or the “integrated employer” test, as clarified through the DOL’s Fact Sheet #35
public and private elementary and secondary schools (regardless of the number of employees)
All public agencies are covered by the FMLA regardless of the number of employees. Included within this definition is the United States government; state governments, political subdivisions of a state, or a state agencies; local governments; interstate government agencies, and; United States government agencies (for example, Postal Service). Although all public agencies are covered, an employee of a public agency must still satisfy the individual eligibility requirements before being entitled to leave.
Historically, many State employers attempted to argue that the Eleventh Amendment barred monetary damages against the state in suits brought under the FMLA. However, in 2003, the United States Supreme court held that states do not have Eleventh Amendment immunity from lawsuits under the FMLA. Therefore, state employees may sue their state employers in federal court under the FMLA and seek monetary damages.
An eligible employee is an employee of a covered employer who meets all of the following criteria:
has been employed by the employer for at least 12 months
is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite
has worked for at least 1,250 hours for the employer during the 12-month period immediately preceding the commencement of the leave
Flight crewmembers and flight attendants meet the hours of service requirement if they meet both of the following criteria:
have worked or been paid for at least 60% of the applicable total monthly guarantee, or the equivalent, for the previous 12-month period
have worked or been paid for at least 504 hours during the previous 12-month period.
For more details regarding employee eligibility, see Chapter 3, Employer Coverage and Employee Eligibility.
Volunteers and the 50 employee threshold
Only the employees on an employer’s payroll should be counted to determine whether an employer meets the threshold for FMLA coverage. As an example, one Michigan court applying this rule held that volunteer firefighters were not city employees. Excluding the firefighters from the count towards the 50-employee threshold meant that the city had less than 50 employees, meaning that none of its employees were eligible for FMLA leave.
Leave to care for a family member
FMLA leave may be taken to care for an employee’s spouse, son, daughter, or parent who has a serious health condition, or to care for a covered servicemember with a serious illness or injury. Employers may require certification from a health care provider regarding the need for the employee to provide care. According to the regulations, an employee may be “needed to care for” his or her family if either physical and/or psychological care is needed. Such care may include basic medical, hygienic or nutritional needs, transportation needs, psychological comfort or reassurance, or to make arrangements for changes in care, such as interviews to select a nursing home. The need to care for a family member ends upon the family member’s death.
An employee does not necessarily need "to care for" a family member in his or her home. In one Seventh Circuit case, Ballard v. Chi. Park Dist., the employee took FMLA leave to care for her terminally ill mother when the mother wanted to take a last family vacation to Las Vegas. Her employer counted the absences against the employee and eventually terminated her. The employee challenged her termination, and the court held that termination under these circumstances violated the FMLA. The Court reasoned that providing care to a family member is not limited by geographic boundaries and applies even when the family member is not actively undergoing medical treatment.
Under the FMLA, the definition of “family member” is important. An employer may request documentation that establishes a family relationship to ensure the relationship qualifies as specifically defined by the FMLA. The covered relationships include the following:
A “spouse” is a person to whom the employee is lawfully married. On March 27, 2015, the Department of Labor’s new FMLA regulations on the definition of “spouse” took effect. Previously, employers looked to the employee’s state of residence to determine if the employee was legally married and considered a “spouse” for FMLA purposes. The new 2015 FMLA regulations changed this test to look to the place where the marriage was entered into (referred to as the “place of celebration”) rather than the law of the employee’s “state of residence.” This change significantly impacted same-sex couples, and sought to ensure that all legally married employees have consistent FMLA leave rights, regardless of where they live.
This new definition does not apply to unmarried domestic partners (including those who have entered into a civil union), but can apply to “common law” spouses if the employee’s state of residence recognizes “common law” marriage.
The definition of “spouse” under the new rule was initially challenged in court. However, in June 2015, the Supreme Court issued its decision in Obergefell v. Hodges, holding that states must recognize lawful same-sex marriages entered into in other states. Under the present state of the law, therefore, employers in all states must abide by the expanded definition of spouse in the FMLA.
Parent means a biological or adoptive parent, foster parent or step-parent, or an individual who stands (or stood) in loco parentis("in the shoes of a parent") to an employee when the employee was a child. A parent-in-law is not included within the definition of "parent."
A person who stood in loco parentis would have been responsible for a child’s daily care or financial support. This relationship may exist even if there is/was no legal or biological relationship between the employee and the person.
If an employee begins taking FMLA leave while an in loco parentis relationship exists, but that relationship later ends, the employee will no longer be entitled to FMLA leave. For example, if an employee initially stood in loco parentis for his granddaughter while his daughter was called up to active duty, his FMLA-leave eligibility will end if the daughter’s orders for active duty are canceled and she returns to care for her own child.
Son or daughter (leave other than for a qualifying exigency or to care for a seriously ill or injured service memeber
A son or daughter is the biological, adopted, stepchild, or foster child of an employee, a legal ward of the employee or a child of a person (including a same-sex domestic partner) standing in loco parentis. A son or daughter must also be either under the age of 18, or age 18 or older and incapable of self-care because of a mental or physical disability. A person is considered "incapable of self-care" if he or she requires active assistance or supervision in providing daily self-care in three or more of the activities of daily living and has an impairment which substantially limits one or more major life activities as defined under the Americans with Disabilities Act (ADA). Activities of daily living include caring for one’s grooming and hygiene, bathing, dressing, eating, cooking, cleaning, shopping, paying bills, using the telephone, using the Post Office, and the like.
Son or daughter (qualifying exigency or servicemember care leave)
A son or daughter for qualifying exigency or servicemember care leave is the biological, adopted, stepchild, foster child, legal ward, or a child of a person who stood in loco parentis to the covered servicemember. The age of the son or daughter is not relevant.
The FMLA makes clear that an employee can take time off to care for a child, but that a child is defined as a person under 18 years of age, or who is older than 18 but has a disability as defined under the ADA and is incapable of self-care. In 2005, the Eleventh Circuit Court of Appeals ruled that an employee’s FMLA claim was properly dismissed where the employee’s pregnant daughter was over 18 and the employee did not prove that the daughter was incapable of self-care because of a mental or physical disability.
If an employee is taking leave for a qualifying reason, they are not bared from also providing other, non-qualifying services. For example, in one case, the Seventh Circuit Court held that an employee was entitled to take FMLA leave to care for her adult daughter (who was battling cancer) and also to care for her grandchildren. It is not clear whether there is a requirement regarding the percentage of the employee's time that is spent caring for an adult child during the leave in order for the FMLA to apply.
"In loco parentis" examples
Employers may occasionally face leave requests to care for sick family members to whom they do not appear to have a qualifying relationship under the FMLA.
For example, consider an employee who requests time off to care for his grandmother who has a serious health condition. Ordinarily, an employee is not entitled to FMLA leave in this situation because a grandmother is not a "family member" as defined by the FMLA. However, if the employee explains that his grandmother raised him when he was a child, the grandmother stood in loco parentis to the employee and the employee will be entitled to FMLA leave, provided all the other requirements are satisfied. The employer may ask for documentation to support this family relationship.
Also consider an employee who asks for time off to care for her seriously ill 10-year-old nephew. Likely, she is not entitled to FMLA leave since a nephew is not a family member under the FMLA. However, if the employee explains that she is raising her nephew, the employee is standing in loco parentis to the nephew and is entitled to take FMLA leave in this situation, provided all the other requirements are satisfied.
Next of kin
An eligible employee can take 26 weeks of leave to care for an injured servicemember. The employee may be the servicemember’s next of kin. Next of kin is defined as the nearest blood relative to the servicemember, other than his or her spouse, parent, son, or daughter. Unless the servicemember specifically designates in writing a particular person as “next of kin,” the regulations provide an order of priority as to which family members are “next of kin.”
Under the FMLA, a covered servicemember is a member of the Armed Forces who meets any of the following criteria:
undergoing medical treatment, recuperation, or therapy
otherwise in outpatient status
otherwise on the temporary disability retired list for serious injury/illness
is a veteran undergoing medical treatment, recuperation, or therapy for a serious injury or illness and who was an Armed Forces member at any time during the period of five years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy.
In order for the military member to be on “active duty” or call to active duty status, the servicemember must have been on active duty or call to active duty status on a contingency operation as defined by federal law.
Serious injury or illness
A serious injury or illness is defined as an injury or illness incurred by a covered servicemember in the line of duty, which renders him or her, unfit to perform the duties of his or her office, grade, rank, or rating.
Serious health conditions
A "serious health condition" means an illness, injury, impairment, or physical or mental condition that involves any one or more of the following:
any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility
a period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider
any period of incapacity due to pregnancy, or for prenatal care
any period of incapacity (or treatment therefore) due to a chronic serious health condition (e.g., asthma, diabetes, epilepsy, etc.)
a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective (e.g., Alzheimer's, stroke, terminal diseases, etc.)
any absences to receive multiple treatments (including any period of recovery therefrom) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (e.g., chemotherapy, physical therapy, dialysis, etc.).
The definition of a health care provider
A health care provider is broadly defined and includes:
a doctor of medicine or osteopathy who is authorized to practice medicine or surgery by the state in which he/she practices
any other person determined by the Secretary of Labor to be capable of providing health care services; these individuals include:
podiatrists, dentists, optometrists
chiropractors (if treatment consists of manual manipulation of the spine to correct a sublaxation as demonstrated by x-ray to exist)
nurse practitioners or nurse midwives
clinical phsychologists or clinical social workers who are authorized to practice under state law
Christian Science practitioners listed with the First Church of Christ Scientists in Boston, Massachusetts
any health care provider from whom an employer or the employer's group health plan benefits manager will accept certification of the existence of a serious health condition
a health care provider listed above who practices in another country who is authorized to practice within the laws of that country.
As evidenced by this list, a health care provider is not simply an “M.D.” Employers cannot insist that a certification be signed by a physician as the definition of health care provider is very broad.
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