Understanding, interpreting and administering the provisions of the Family and Medical Leave Act (FMLA) continues to challenge many employers. A specific problem area employers have been grappling with involves determining when an employee is eligible for FMLA leave to care for a family member.
Enacted in 1993, FMLA provides eligible employees with 12 weeks of unpaid, job-protected leave from a covered employer in a 12-month period for the birth, adoption or foster placement of a child; to care for a family member with a serious health condition; or when an employee's own serious health condition makes the employee unable to perform his or her job.
Most employers generally are aware of their obligations under FMLA to grant leave to employees to care for family members. However, FMLA narrowly limits the definition of family member to a "spouse, or a son, daughter or parent, of the employee, if such spouse, son, daughter or parent has a serious health condition." This definition may appear self-explanatory, but it is further restricted by the U.S. Department of Labor's (DOL's) interpretive regulations, which set forth additional criteria for determining whether the requested leave is indeed needed to care for the family member.
For instance, if an employee were to ask for one week of leave to be at home with her 18-year-old son who had a serious case of the flu that required hospitalization, would the leave be covered by FMLA?
There are many questions raised by this seemingly simple scenario. Does the son, who is legally an adult, qualify as a family member? Is leave needed to care for the son? Is the illness a qualifying condition? And what would happen if you grant the leave and the employee subsequently requests a full 12 weeks off to care for her own serious health condition later that year?
This example illustrates the additional hurdles created for employers in administering FMLA leave. Above and beyond the obvious difficulties of determining whether a family member's impairment constitutes a qualifying condition, you also must determine whether an employee's family member is covered and whether the request is to care for that family member.
A lack of clear guidance has resulted in no shortage of claims by employees who suffered adverse employment consequences for taking time off to care for their loved ones after their requests for FMLA leave were denied. However, a closer look at recent court decisions and DOL opinion letters can provide much needed direction in navigating the thorny issues surrounding requests for leave to care for family members.
Who is covered?
For the most part, the term "family member" as used by FMLA adheres to its ordinarily accepted meaning, but there are exceptions.
Parents
FMLA defines "parent" as the biological parent of an employee or an individual who stood "in loco parentis" to an employee when the employee was a minor. The term "in loco parentis" is Latin for "in the place of a parent" and generally refers to a person's legal responsibility to take on some parental functions and responsibilities without having gone through the formal adoption process. Although "in loco parentis" also can refer to an organization that assumes parental obligations of a minor, such as a county custodial agency or boarding school, FMLA only covers individuals.
The definition of parent also does not include a parent-in-law unless the individual stands "in loco parentis" to the requesting employee. In the 2005 case Lewis v. Potter in California, the court upheld an employer's denial of an employee's request for FMLA leave to care for his mother-in-law on the grounds that FMLA does not cover parents-in-law.
"Parent" also does not extend to a grandparent as confirmed by a Missouri court when it upheld the employer's decision in Krohn v. Forsting. In this case, the employee was denied FMLA leave to care for her grandmother who had moved in with the employee. The grandmother had not provided primary care to the employee during the employee's childhood and did not stand "in loco parentis" to the employee when she was a minor.
Children
FMLA defines "son or daughter" as a "biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in 'loco parentis,' who is: (1) under 18 years of age; or (2) 18 years of age or older and incapable of self-care because of a mental or physical disability."
If a child is younger than 18, you simply need to determine whether the child suffers from a "serious health condition" as defined by FMLA and whether leave is needed to care for the child. If the child is 18 or older, a serious health condition alone will not justify leave; the child also must be incapable of self-care because of a physical or mental disability.
DOL regulations define "incapable of self-care" to mean an individual requires active assistance or supervision to provide daily self-care in several of the "activities of daily living" or "instrumental activities of daily living."
Activities of daily living include appropriately caring for one's grooming and hygiene, bathing, dressing and eating. Instrumental activities of daily living include cooking, cleaning, shopping, using public transportation, paying bills, maintaining a residence, using telephones and directories, using a post office, etc.
An employee's adult child also must suffer from a mental or physical "disability" as defined by the Americans with Disabilities Act (ADA) for the employee to take advantage of FMLA leave. This means an impairment must substantially limit one or more of the adult child's major life activities, such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning or working.
To determine whether an adult child is substantially limited in a major life activity, you must assess the impairment's nature and severity, expected duration, and expected permanent or long-term effects.
For instance, in Navarro v. Pfizer Corp., the court determined an employee's pregnant adult daughter might be incapable of self-care because she suffered from high blood pressure and a doctor ordered that she remain in bed while pregnant. The court allowed the employee to proceed with her claims.
Although situations certainly arise in which children are deemed physically or mentally disabled after they turn 18, the need for leave to care for adult children typically occurs in circumstances where an adult child has suffered from a mental or physical disability from earlier in childhood that continues after he or she reaches 18 years of age. In such situations, an employee's need to care for a minor child may not end when the child reaches 18 years of age. You should examine each situation carefully and not assume that because an employee's child has turned 18 the need for leave to care for the child ceases.
So in the earlier example in which an employee requested leave to care for her 18-year-old son with a serious case of the flu that required hospitalization, the leave likely would not qualify for FMLA leave because the flu would not fall within ADA's definition of a disability. However, if you granted the leave—even when it wasn't covered by FMLA—and the employee subsequently requested an additional 12 weeks off to care for her own serious health condition within the same 12-month period, you arguably would be required to grant that time off, as well.
The point is to be mindful at all times of the distinction between children and adult-age children and process requests for leave accordingly. Notably, do not voluntarily grant FMLA leave to an employee seeking time off to care for a child suffering from a nonqualifying condition unless you are prepared to live with the consequences of potentially doubling the leave time available under FMLA.
Spouses
FMLA defines "spouse" as "a husband or wife, as the case may be." DOL has clarified the ambiguous phrase "as the case may be" by defining spouse to mean "a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common-law marriage in States where it is recognized."
Legal marital status under applicable state law becomes particularly important when assessing requests for leave to care for same-sex or opposite-sex domestic partners because FMLA does not apply to unmarried domestic partners.
In fact, whether leave must be granted to same-sex partnerships depends on how such unions are treated under the law of the state in which you work. If a state does not recognize same-sex marriages, leave to care for a same-sex partner is not available under FMLA. DOL has received many inquiries regarding FMLA's application to domestic partners and consistently has responded that FMLA permits the use of leave only to care for a spouse, parent, son or daughter.
In an opinion letter (FMLA-98) dated Nov. 18, 1998, DOL clarified the regulations expressly define the term "spouse" as a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including common-law marriage in states where it is recognized. It notes the legislative history that confirmed this definition was adapted "to ensure that employers were not required to grant FMLA leave to an employee to care for an unmarried domestic partner."
The letter also explains that the Defense of Marriage Act (DOMA) of 1996 established a federal definition of "marriage" as a legal union between one man and one woman as husband and wife and a spouse as a person of the opposite sex who is a husband or wife. DOL concluded that, because FMLA is a federal law, "it is our interpretation that only the Federal definition of marriage and spouse as established under DOMA may be recognized for FMLA leave purposes."
However, if your state recognizes same-sex marriages, the leave would qualify under FMLA. Notwithstanding its position on the applicability of FMLA to same-sex marriages, DOL's opinion letter clarifies that nothing in FMLA supersedes any state or local provision that provides greater family leave rights than under FMLA so that coverage may exist in states that recognize same-sex marriages.
Therefore, consistent with FMLA language, if an employee requests leave to care for a same-sex spouse in a state that recognizes gay marriages, FMLA leave would be available to the employee. Further, by including common-law spouses within FMLA coverage, there may be instances in which a domestic partner is deemed a "spouse" under FMLA by operation of the state's law regarding recognition of common-law marriage.
Finally, before denying leave, you must verify the state in which an employee was married and whether the state in which the employee works recognizes that marriage. Some states may not allow for marriages without licenses but will recognize any marriage from outside that state that was valid at the time of contract, which includes valid common-law marriages from other states. Therefore, in such states, if an employee entered into a common-law or same-sex marriage in another state that allows such unions, the marriage arguably would be valid in those states, as well.
Check your records to see whether an employee who is seeking FMLA leave and claiming a common-law marriage has negated this required element by indicating "single" in employee personnel records, such as benefits election forms. Currently, there are only a dozen or so states that recognize common-law marriages, which typically require a permanent and exclusive agreement to enter into a marriage relationship, cohabitation sufficient to warrant fulfillment of the necessary relationship, and an assumption of marital duties and obligations.
Notwithstanding DOL's opinion letter, if you live in a state that recognizes same-sex marriages, consider minimizing your risks of violating FMLA in such instances by granting leave to care for same-sex spouses.
DOL's position and current uncertainty in the area clearly are problematic, particularly if you have followed recent trends in providing employee benefits for domestic partners, including unmarried same-sex couples who live together in relationships bearing the features of a marriage.
You may extend your FMLA policy to employees so they may care for their domestic partners even though doing so is not required by law. But if you do, keep in mind you still must extend legally required FMLA benefits to the employee to care for himself or herself and covered family members. This could result in an employee taking two 12-week FMLA leaves within a 12-month period—one to care for a domestic partner and the other for any other permitted purpose under FMLA.
Defining "care for"
At the outset, you must not lose sight of the fact that leave to care for a family member's serious health condition is a "double trigger" requirement. In other words, an employee's family member must first suffer from a serious health condition (with the exception of adult children, who must suffer from a legal disability) and the employee must be needed to care for that family member. The interpretive regulations explain an employee's need to care for a family member suffering from a serious health condition encompasses physical and psychological care. It includes, for example:
Much in the same way an employee would be entitled to take intermittent leave to care for his or her own serious health condition, an employee also may take intermittent leave or a reduced leave schedule when a family member's condition is intermittent or where the employee is only needed intermittently—such as where other care typically is available or care responsibilities are shared with another family member or third party.
Unfortunately, the regulations do not offer guidance beyond these basic examples of providing care. The result is numerous federal court cases in which employees have asserted claims against employers who have refused to grant leave to care for family members with both parties frequently relying on their subjective understandings of FMLA requirements.
In turn, court cases have resulted in conflicting interpretations of FMLA regulations, which further subject employers to costly litigation or employee abuses. DOL has issued multiple opinion letters to address the confusion, but they are not binding in court and only are intended to address fact-specific inquiries. Until Congress or DOL decides to take action, you have no choice but to continue to closely monitor court decisions and the occasional guidance from DOL to determine your best courses of action when responding to employee requests for leave to care for their family members. Some recent cases illustrate how federal courts have interpreted FMLA's "care for" provision.
Caring over the phone
The employer in Tellis v. Alaska Airlines Inc. denied FMLA leave to an Alaska Airlines maintenance mechanic based in Seattle whose wife was having problems with her pregnancy. The employee had requested time off work to care for his wife. The supervisor suggested the leave should qualify as FMLA time and referred him to the proper department. The employee requested and received an FMLA leave request form.
While waiting for his FMLA request form to be approved, the employee's car broke down. The employee decided to fly from Seattle to Atlanta to pick up a car he owned there and drive back to Seattle. The employee placed regular telephone calls to his pregnant wife during the four days it took for him to drive cross country to Seattle.
The employer terminated the employee for unexcused absences. When the employee asserted claims that his FMLA rights had been violated, the court found in favor of the employer, ruling that telephone calls could not be considered "caring for" his wife under FMLA.
Implicit in this decision is the requirement that there be some level of in-person participation in the care being provided for a covered family member, whether psychological or physical. This means physically assisting the family member with basic needs, directly transporting the family member to obtain treatment, or providing face-to-face comfort and reassurance to the family member. However, note that mere physical presence is not necessarily sufficient to warrant FMLA leave.
How much is enough?
In Williams v. Air Products & Chemical Inc., the court allowed an employee to proceed with his claims against his employer who terminated him after he had requested FMLA leave to care for his son who was going to have open-heart surgery.
The employee took several days off work near the time of his son's surgery, briefly returned to work and took an extended leave for four months, based at least partly on his son's need for continued medical treatment. The evidence established the employee visited his son about one weekend a month and assisted with basic nursing duties, making health care decisions, and purchasing medical supplies.
The employer terminated the employee on the grounds that the employee's limited visitation and involvement with his son were too slight to merit eligibility for FMLA leave. The court rejected the employer's argument, noting the employee had explained—and the employer understood—the leave was for an FMLA-qualifying reason. The court further noted it was the employer's burden to ascertain whether leave qualifies under FMLA and that the employer could not subsequently declassify the leave from FMLA status. The court permitted the employee's claim for FMLA retaliation and violation of his rights under FMLA to proceed.
This case illustrates the difficulties in balancing the need of employees to take reasonable leave to care for their family members and the legitimate interests of employers that employees who take leave are using it for proper purposes. You should maintain and closely adhere to procedures to keep track of employees' absences to make sure employees do not abuse leave time by taking more time off than is medically necessary.
Adult children
In Cruz v. Publix Supermarkets Inc., the employee requested leave to care for her adult daughter who was pregnant and expected to give birth during the period of the employee's leave. The employee failed to inform the employer of any pregnancy complications but sent a letter from her daughter's doctor stating the employee was needed for labor coaching because her son-in-law had broken his collar bone and could not assist with the delivery. The employer denied her request for leave, and the employee sued.
The court rejected the employee's claim, finding she had failed to provide sufficient notice of her need for leave because she had failed to provide any information that would have led her employer to conclude her daughter was having anything other than a normal pregnancy and delivery. In other words, have employees articulate, directly or through a family member's health care provider, sufficient information to determine whether an adult child's physical or mental impairment qualifies as a disability.
In contrast, the employee in Blackburn v. Potter requested two weeks of FMLA leave to care for her 19-year-old daughter who was undergoing a Cesarean section childbirth and presented a doctor's note to that effect. The employer denied her request for leave as not qualifying under FMLA. The employee then presented an FMLA medical certification form from her daughter's health care provider, but the employer denied the leave and terminated the employee claiming she had falsified the certification.
The court rejected the employer's argument that the employee was not entitled to FMLA leave because her daughter's condition did not qualify as a serious health condition and found that the employee had submitted sufficient information certifying she was required to attend to her daughter's personal needs and psychological comfort in connection with the medical procedure.
The court also found that delivery by Cesarean section and post-delivery recovery qualify as an "incapacity due to pregnancy" and that the adult daughter was "incapable of self-care" but did not address whether the mental or physical "disability" element had been satisfied, which is troubling inasmuch as a pregnancy is not a disability within the meaning of ADA.
This case highlights not only the importance of an employee's obligation to state the type of care he or she will be providing for a family member but also the difficulties associated with an employer's obligation to determine whether the family member's condition is sufficient to trigger FMLA coverage.
More than physical presence
In Fioto v. Manhattan Woods Enterprises LLC, the employee sued his former employer for terminating him after he took a day off to be present while his dying mother underwent emergency brain surgery. The employee believed his leave qualified under FMLA, but the court disagreed. In fact, the court even found no need to interpret the regulations' "care for" language because the employee had failed to testify his visit was "intended to provide care for his mother at the hospital or actually gave her such support during his visit."
The evidence established the employee only intended to visit his mother during her hospitalization, not to provide care, so his termination could not support an FMLA claim. Although the case's outcome appears unduly harsh to the employee, it reiterates FMLA's underlying purpose: to allow protected time off of work to care for oneself or a family member.
Similarly, the court in Bright v. Colgate-Palmolive Co. rejected the employee's claims alleging a violation of her FMLA entitlement and FMLA retaliation after she left work to go to the hospital because her father had suffered a heart attack. She called her employer four hours and 15 minutes after the start of her shift, explaining where she was and that she would be out for the remainder of the day. The employer disciplined her and denied her request for FMLA leave for the day. As a result of her discipline, the employee's raise was delayed and she lost 50 percent of her quarterly bonus.
The court found in favor of the employer because the employee had failed to present any evidence that she provided any care to her father when she visited the hospital. However, the court allowed the employee to proceed with her FMLA retaliation claim, noting that other employees had not received the same type of discipline, her raise had been delayed and there was a question as to whether the bonus was discretionary. Therefore, there was sufficient evidence to show the employer's reasons for terminating the employee were a pretext for retaliation.
Actual care required
Other court decisions highlight the importance of having an employee articulate some measures to actually provide psychological or physical care for a family member. The employee in Scamihorn v. General Truck Drivers took leave for several months to care for his 73-year-old father who had been suffering from deep depression after his sister's murder. When the employee returned from his leave, the employer advised him he had lost his seniority and had to start over as a probationary employee. The employee filed suit, alleging his leave was protected by FMLA and he was entitled to reinstatement without loss of seniority.
The court disagreed, concluding the leave was not covered because the employee's father did not suffer from a serious health condition and the employee did not care for his father within the meaning of FMLA. But the court of appeals reversed the decision, noting the employee talked to his father daily about his sister's death, performed various physical chores around the house and drove him to counseling sessions. Although the employee did not actively participate in his father's treatment by attending the sessions with him, the court found the phrase "to care for" encompassed the type of psychological care the employee provided and reversed summary judgment for the employer.
Although the court cases described fail to articulate a uniform standard for what constitutes "caring for" a family member, if an employee requests such leave, it is clear you should require employees to articulate the covered family members' specific conditions (through the medical certification process) and the type of physical or mental care required. If there is any doubt as to whether an employee's leave qualifies under FMLA, consider the issue closely with a human resources professional and counsel.
What to look for
The bottom line is you need to pay careful attention to what employees say when discussing need for time off in connection with a family member's illness. Of course, circumstances will vary, and you must strive to make appropriate leave decisions on a case-by-case basis. And because a number of states have enacted similar leave statutes with analogous, but nonetheless different, provisions to those of FMLA, you must consider them when assessing employee leave requests.
You will be well-served by identifying the issues surrounding leave requests to care for family members as quickly as practicable and adhering to the procedures and requirements set forth in FMLA and applicable state laws in consultation with trained professionals.
Victoria L. Donati and Jason C. Kim are partners in the employment law group with the Chicago-based law firm Neal, Gerber & Eisenberg LLP.
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