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What type of ‘family care’ qualifies for FMLA leave?

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in FMLA Guidelines,Human Resources

by Mindy Chapman, Esq.

Do you get nervous and sweaty when an employee asks for leave to help care for a sick family member? You know this could count as FMLA leave. But what kind of “needed care” is really needed to be eligible for FMLA leave? A new court ruling further helped define the boundaries …

Case in Point: David Miller regularly drove his father to medical appointments after his father was diagnosed with terminal cancer. Eventually, the doctor estimated his father had about 90 days to live and suggested he move into hospice care. The father refused. This refusal caused Miller and his father to have a falling out.

Subsequently, Miller missed 23 days of work and was eventually fired for unexcused absences.

Miller sued, saying the company interfered with his FMLA rights. He argued he was improperly terminated because he was needed to care for his father.

The employer disagreed, noting that the father’s caretaker said the father was able to eat, shower and dress independently and even drove himself to a party.

Result: The court sided with the employer and dismissed the case. It noted that the U.S. Department of Labor’s FMLA regulations say “needed care” includes “making arrangements for changes in care, such as transfer to a nursing home.”

Miller also argued that he was providing his father with “psychological care.”

However, the court found that psychological assistance may only be necessary for a family member who is “receiving inpatient or home care.” (Miller v. Nebraska Dep’t of Econ. Dev., 8th Cir.)

3 lessons learned … without going to court

1. Know the FMLA requirements. In this case, the court clearly defined what an employee must show to properly be granted FMLA leave for “needing to take care” of covered relatives.

2. Be consistent. Once you start granting nonqualifying leaves under the FMLA, you open the door for screams of discrimination. “You gave FMLA leave to Miller. I want it, too!”

3. Listen carefully, fire wisely. On the one hand, Miller asked for leave to care for his father but his father denied the care.

On the other hand, Miller claimed he could not care for his father be­­cause his father caused him emotional issues. The latter was not a covered reason for leave under the FMLA’s “needed to care for” clause.


Author: Mindy Chapman is an attorney and  president of Mindy Chapman & Associates LLC. She is a master trainer, keynote speaker and co-author of the ABA book, Case Dismissed! Taking Your Harassment Prevention Training to Trial. Sign up to receive her blog postings at Case in Point.

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