Taking leave to care for family members: The fine line between necessary leave and FMLA violation

by on January 14, 2010 · 1 Comment POSTED IN: HR Info Center

The Family Medical Leave Act gives employee’s the opportunity to take time off of work to care for ill family members.

Here are two cases that demonstrate the importance of grading the necessity of FMLA leave to care for relatives. When is an employee necessary to the welfare of their family member? More importantly, when are they using their sick family members as an excuse for time off?

FMLA violation case: is ‘visiting’ the same as ‘caring for’?

When Dave Holly was summoned to HR, he assumed that they wanted him to fill out some paperwork for the one-day FMLA leave he’d recently taken to care for his mother after her brain surgery. But when Dave arrived at HR director Brett Simon’s office, he sensed that something was wrong: Not only was Brett present, but so was Dave’s boss, Laurie Snyder.

“What’s going on?” asked Dave.

Brett was the first one to speak. “Unfortunately, Dave, we have to let you go. You violated Olim Inc.’s attendance policy. And as you know, we always enforce that policy strictly, across the board.”

Clear FMLA violation, or quibble over semantics?

Dave was stunned. “What?” he asked. “I called in and told Alice at the front desk that my mom needed surgery. I needed to be with her. And she needed me there. Hey, that’s what the FMLA is all about. You can’t fire me, and if you do I’ll sue!”

Laurie shook her head. “No, Dave. The FMLA entitles you to medical leave to care for a sick parent.”

Dave interrupted. “This is insane. That’s exactly what I did!”

Laurie continued. “No. You visited your mother. You didn’t take care of her.” Laurie went on to explain that according to Olim’s corporate policies, unexcused absences result in termination. “And your absence was unexcused,” said Brett, “because you failed to contact your supervisor.”

“I called in,” argued Dave.

“But you didn’t really need an FMLA leave,” said Brett. “You told us yourself, you didn’t care for your mother, you only visited her in the hospital.”

“Oh, come on, you’re just quibbling over semantics,” said Dave.

Despite his protests, Dave got fired. He sued Olim, Inc. for FMLA violation.

Did Dave win?

The decision

No. Dave lost his FMLA violation lawsuit.

At first, a jury decided in his favor and awarded him more than $75,000. But the judge overturned the jury’s verdict.

In reaching its decision, the court distinguished between “visiting” and “caring for” a family member.

Under the law, they’re two different things.

The court noted that FMLA leave is only available for the serious health condition of a family member when the employee is needed to “care for” that family member. That means the employee must be involved in providing some sort of ongoing care. Otherwise, the leave can be considered an FMLA violation.

Visiting the family member isn’t enough to invoke FMLA coverage, said the judge. In this case, there was no evidence that Dave had provided physical or psychological care.

In weighing the evidence, the judge said that Dave wasn’t needed at the hospital: There were no medical decisions for him to make and no care for him to provide.

Cite: Fioto v. Manhattan Woods Golf Enterprises, LLC, U.S. District Court, Southern District of New York, No. 01, Civ. 5383 (CM), 7/2/03. Fictionalized for dramatic effect.

Court: Employer’s denial was FMLA violation. Son’s ADHD diagnosis entitled mom to FMLA leave

Just because an employee doesn’t specifically request “FMLA” leave, doesn’t mean she isn’t entitled to it.

Here’s a recent case where an employer should have dug deeper and asked more questions before denying a worker’s request for leave to care for her son who’d been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD).

Facts of the FMLA violation case

When an employee told her supervisor that she needed time off to “babysit” her ADHD son, the supervisor said that the son’s condition wasn’t leave-qualifying. But she was wrong.

Two weeks later the employee made a second request: She asked for a modified work schedule so that she could drive her son to school as part of his treatment.

Again her request was denied. This time her supervisor said that the adjusted schedule would cause hardship for the department. The woman was given an ultimatum: Either work 9-5 like everyone else or resign. She chose neither and was terminated.

The woman filed a lawsuit, claiming FMLA violation. And she won in court.

In reaching its decision, the court said the FMLA violation was that the employer hadn’t done a thorough enough job questioning the worker about her son’s abilities to perform the daily functions of life.

If the employer had asked more questions about the son’s condition, it would have known he was unable to ride the school bus and was on medication. Because he was unable to perform day-to-day activities, his mother should have been granted FMLA leave to care for him. The employer’s denial of her rights was a clear FMLA violation.

Cite: Jennings v. Parade Publications, U.S. District Court, Southern District of New York, 10/14/03.

  • Melida Gonzalez

    Hi! can two family members file family medical leave?

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