Verifying Employees’ FMLA Use to ‘Care For’ Their Family Members
The Family and Medical Leave Act (FMLA) allows for eligible employees to take leave to “care for” a family member such as their son, daughter, spouse or parent that suffers from a serious health condition. Even if an employee has a family member that suffers from a serious health condition, it can’t just be assumed that the employee is “caring for” them.
Caring for a seriously ill family member would include such situations where “the family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor.” As well as “providing comfort and reassurance [that] would be beneficial to a child, spouse, or parent with a serious health condition who is receiving inpatient or home care.” Performing household or landscaping chores would not generally count as “caring for,” except in limited circumstances.
To prevent being scrutinized by the court, you need to obtain detailed information regarding FMLA leave and evaluate whether your employee is truly providing care for an ill family member or just using it for a chance at an extra getaway.
Gathering the facts:
- Ask the employee the primary purpose of their leave: Just saying they’re visiting a sick family member doesn’t cut it. You need to be asking who it is that they’re caring for so you can determine if that falls under the FMLA regulations.
- Ask how they will be providing care: Asking how your employee will be providing care to their family member will help you understand whether they are providing physical or psychological care or both. FMLA regulations encompass both forms of care, but sometimes the analysis for each type is different. The employee doesn’t have to be the only one providing care for their family member.
- Ask where the family member is located or where the care will be provided: These two locations are not always the same. Employees are more likely to qualify for FMLA if they are in close contact with the ill family member. So most times, having telephone conversations with your ill family member is not sufficient enough. But talking to another family member or the ill family member’s physician about medical decisions is enough to suffice as providing care in some circumstances.
- Ask if they are substituting for another care provider: If the employee is substituting for the normal care provider or the ill family member is making arrangements for a change in care, then that would fall under the “caring for” requirement. It’s good to note that if the employee is caring for an unconscious or unresponsive family member that is under the care of qualified medical staff, that they are still covered under FMLA. The employee may be providing psychological comfort and support as well as managing the ill family member’s medical decisions.
So to wrap up, ask these critical questions to ensure your employees are utilizing FMLA correctly and to curb fraud and abuse. Make sure to consult with your labor and employment attorney to determine if the “care for” element has been satisfied based on the facts you have carefully and thoroughly obtained from your employee.
For more information contact firstname.lastname@example.org. The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.