Reasons for FMLA leave Nancy Van der Veer Holt Ford & Harrison LLP September 24th, 2019 Twelve weeks of leave Eligible employees are entitled to take 12 weeks of FMLA under the following circumstances: for the birth of a child (including the child of a domestic partner or a same-sex domestic partner) and to care for the newborn child for the placement, with the employee, of a child for adoption or foster care to care for the employee’s spouse, child or parent who has a serious health condition because of a serious health condition, which makes the employee unable to perform the functions of the position of his or her job for qualifying exigency event(s) while a covered servicemember is on active duty or call to active duty status. Eligible employees may take a total of 12 workweeks of FMLA leave during any 12-month measuring period. Thus, an employee is not entitled to take 12 weeks of FMLA leave for the birth of a child followed by 12 weeks of FMLA leave for his or her own serious health condition all in the same 12-month measuring period. Twenty-six weeks of leave An eligible employee who is the spouse, parent, son, daughter, or next of kin to a covered servicemember can take 26 weeks in any single 12-month period to care for the servicemember with a serious illness or injury. Details that apply to "baby" leave A pregnant employee and/or her spouse may take time off prior to the birth of their child, but such leave would then be due to the expectant mother’s own serious health condition such as morning sickness or prenatal care, not for the birth of a child. Such FMLA can be taken on an intermittent basis. This leave is only available to spouses and not to non-spousal parents to the unborn child. An eligible employee’s right to leave for the birth or placement of a child expires at the end of the 12-month period beginning on the date of the birth or placement, unless either state law or the employer allows leave to be taken for a longer period of time. An employee can take intermittent or reduced schedule leave after the birth or placement of a child or for adoption or foster care only if the employer agrees to allow such intermittent leave. Such intermittent leave may be taken in the form of a part-time work schedule or leave taken in several small segments. Otherwise, leave after the birth or placement of a child can only be taken on a continuous, non-intermittent basis. As an example, a female employee’s baby is due June 1. She asks to take FMLA in two six-week periods – June 1 through July 13, and November 1 through December 13. The employer can choose to either: agree to this intermittent approach decline this approach and tell the employee for the birth of her child she must take FMLA leave on a non-intermittent basis. Prior to the birth of a child, FMLA can be taken by an employee only for the serious health condition of the expectant mother. Unlike FMLA leave upon or after the birth of a child, leave taken prior to the birth can be taken on an intermittent basis. For example, if a male employee’s wife is pregnant and her doctor orders bed rest for one month, the employee/husband may request every Thursday and Friday off for one month to care for her. This intermittent schedule would be appropriate under FMLA. Prior to the placement or adoption of a child, an employee may be absent from work to attend events such as court appearances, interviews, counseling sessions, attorney-client meetings, physical examinations, and the like. Absences associated with these events are protected under the FMLA, provided the employee is otherwise eligible. FMLA leave under these circumstances may be taken on an intermittent basis. The need to take leave for the birth of a child, to care for a newborn child, or for the placement or adoption of a child applies to both male and female employees. Thus, a father, whether or not married to the child’s mother, can take FMLA leave for the birth of his son or daughter. The U.S. Department of Labor issued an Administrative Interpretation clarifying its opinion that employees are entitled to take FMLA leave for birth, bonding, or to care for the child of a domestic partner or same-sex domestic partner. This is the first time the agency has specifically stated that otherwise covered employees are entitled to take FMLA leave to care for children of domestic partners or same-sex domestic partners. With this Administrative Interpretation, eligible employees can take “baby leave” upon the birth or placement of a child to their domestic partner or same-sex domestic partner; however it appears that such leave is not allowed prior to the birth or placement of the child. This same Administrative Interpretation makes clear that there is no limit to the number of “parents” a child can claim. Leave for both foster care and adoption Foster care is the 24-hour care for children in substitution for, and away from, their parents or guardians, where placement is made by or with the state’s agreement or pursuant to a voluntary agreement between the parent or guardian and the state. What happens when an employee has a foster child placed in his or her home and then later adopts the child? Is the employee entitled to 12 weeks of FMLA for both events? According to the DOL the answer is no. In 2005, the DOL issued an opinion letter concluding that an employee is entitled to FMLA only for the foster care placement. The DOL focused on the regulations which allow for FMLA when a child is “newly” placed for adoption or foster care. In this situation, the child is “newly” placed for foster care, not the subsequent adoption. Taking sick leave under the FMLA An eligible employee is entitled to take FMLA leave for the following situations: his or her own serious health condition the serious health condition of a spouse, child or parent. A parent-in-law is not covered. The employee’s serious health condition must render the employee unable to perform his or her position. This requirement is met when the employee’s healthcare provider indicates that the employee is unable to work at all or is unable to perform any one of the essential functions of his or her position. The same job descriptions utilized by the employer under the ADA may also be utilized under the FMLA in assisting the healthcare provider in making the determination as to whether the employee can perform the essential functions of the job. For the employee to take FMLA leave for the serious health condition of his or her family member (child, parent or spouse), the requisite health care provider certification form requires the employee to explain why he or she is needed to care for the family member. “Needed to care for” involves a variety of situations, such as providing: basic medical, hygienic or nutritional needs transportation for the family member psychological comfort or reassurance to the family member. This term also includes the times when the employee is needed to serve as a substitute for other persons who are caring for the family members or to make arrangements for care of the family member (for example, a nursing home interview). The new regulations make clear that the employee need not be the only person available to care for the family member. An employee’s own serious health condition or that of a family member may require the employee to take leave on a consecutive basis (for example, 12 weeks in a row) or on an intermittent basis or reduced leave schedule. Note: Workers who are ill will COVID-19 or have an ill family member are urged by the CDC to stay home to minimize the spread of the virus. Employers are encouraged to support these and other mitigation strategies and should consider flexible leave policies for affected employees, although there is no law mandating employers to do so. The Families First Coronavirus Response Act (FFCRA) was allowed to expire on December 31, 2020. Those employers voluntarily electing to provide sick leave for COVID-19 may take the tax credits provided under FFCRA for such leave through March 30, 2021. The definition of "caring for" a family member One court concluded that an employee needs to be “in close and continuing proximity” with the family member to satisfy the FMLA. While the employee’s injured daughter was in Florida, the employee returned to Texas to care for his house; the court concluded that frequent telephone calls to the daughter were insufficient. Spouses working for the same employer When spouses work for the same covered employer and are both eligible for FMLA leave, the FMLA provides different rules as to the use of FMLA. The spouses are limited to a combined total of 12 weeks of leave when leave is taken in the following situations: for the birth of the employee's child or to care for the child after birth for the placement of a child, for adoption or foster care, or to care for the child after such placement to care for the employee's parent who has such serious health condition. Under servicemember care leave, spouses working for the same employer are limited to a combined total of 26 weeks leave. These rules apply when the husband and wife are employed by the same employer, even if they work at different worksites more than 75 miles apart. However, each spouse can take 12 weeks simultaneously for the serious health condition of a child or the other spouse. If the spouses each take a portion of the 12-week entitlement, they each are entitled to the difference between what was taken individually and 12 weeks. For example, if each spouse took six weeks for the birth of a child, each could use six weeks to care for a child, parent, or spouse with a serious health condition, or for the employee’s own serious health. Commonly asked questions and answers Q. Who determines whether an eligible employee is unable to perform the functions of his or her job? A. This determination is made by the employee’s healthcare provider. Questions 7a and 7b on the Certification of Healthcare Provider Form reference an employee’s ability to perform the essential functions of the job. Q. If a pregnant employee is unable to work the last three months of her pregnancy and, thus, takes a leave of absence at that time, is an employer required to give her 12 weeks of FMLA upon the birth of her baby? A. If an eligible employee takes FMLA leave prior to the birth of her child, such time off will count toward the 12-week entitlement under FMLA. Thus, if the employee uses 12 weeks of leave prior to the birth of her child, upon the birth of her child she has no FMLA leave left. However, keep in mind that if the employer utilizes the calendar year as the 12-month measuring period and the 12 weeks prior to the birth occurred at the end of one calendar year, the employee may be eligible for some FMLA upon the new calendar year. Q. If an employee has a foster child in her home, is the employer required to grant FMLA leave when the foster child is sick? A. A foster child is considered a son or a daughter under the FMLA. Thus, if the foster child has a serious health condition and the employee is eligible for FMLA leave, then FMLA must be granted under the circumstances. Q. If the employee needs time off from work to care for an ill family member, but the employee will not be providing any medical care or treatment, is the employee entitled to FMLA leave? A. An eligible employee may take FMLA leave when he or she is needed to care for a spouse, son, daughter, or parent who has a serious health condition. The phrase “needed to care for” is not limited to the providing of medical care or treatment. Certainly if the employee provides medical care to the ill family member, he/she is “needed to care for” the family member. However, “needed to care for” also includes providing transportation, providing psychological comfort or reassurance, making arrangements for care such as interviews in selecting a nursing home, and filling in for others who are caring for the ill family member. Q. What if an employee asks for time off to care for her ill grandmother whom she says raised her? A. The employee is explaining that her grandmother stood in loco parentis (as a parent) to her when she was a child. If the employee so explains the relationship in this manner, she is eligible for FMLA leave, provided that the grandmother has a serious health condition and the employee is otherwise eligible for leave. Q. What if the employee is unable to prove this relationship with documentation? A. In this in loco parentis example, the employee is unlikely to have documentation because many such relationships are handled outside the legal or courtroom setting. Moreover, the employee was likely raised by her grandmother many years ago. An employer would not be wrong to accept the employee’s explanation as being true. The employer should document that the employee’s request was to care for her grandmother who raised her, so that FMLA may properly be counted. Q. Dealing with "adult children" issues is confusing. How is the best way to handle these issues? A. When an employee states that he or she needs time off to care for an ill child, an employer is entitled to ask the age of the child. If the child is 18 or older, the employee is not entitled to FMLA leave unless the child is incapable of self care because of a mental or physical disability as defined by the ADA. The employer is entitled to ask questions relating to the child’s condition, and the employee must provide this information. If the employee refuses to cooperate in responding to these questions, the employer may deny FMLA leave and, of course, must document the reasons why.