FMLA Leave for Same-Sex Couples to be Clarified by Supreme Court's DOMA Decision?

Posted by Jeff Nowak on December 11, 2012

DOMA.jpgThis past Friday, the United States Supreme Court announced that it would consider whether the Defense of Marriage Act (DOMA) unlawfully denies benefits to gay and lesbian couples who are married in states that allow such unions.  A Supreme Court decision nullifying DOMA could have wide ranging impacts, including how the Family and Medical Leave Act covers "caring for a spouse." 

Let me explain how.

The FMLA allows eligible employees up to 12 weeks of job-protected leave to care for a spouse who suffers from a serious health condition.  But who is a "spouse"?  As an initial matter, the FMLA regulations (at 29 C.F.R. § 825.122(a)) look to state law to define the term:

Spouse means 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.

The FMLA's provisions, however, are further governed under federal law by DOMA, which very clearly states that:

. . . the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife.

So, even if a state allows same-sex marriage, DOMA does not recognize the union.  As a result, employees who are in same-sex marriages can lawfully be denied FMLA leave to care for their spouses.  Many states have adopted broader versions of the FMLA so as to provide leave to care for a same-sex spouse or civil partner.  The problem for employers in these states, however, is that leave that is not FMLA qualified cannot be counted against an employee’s FMLA entitlement. 

Let's use an example: if an employee is allowed 12 weeks of leave under company policy to care for his same-sex spouse, but later needs an additional 12 weeks of leave for a health condition that qualifies for FMLA leave,  the employer must grant his request for FMLA leave because the FMLA tells us that the initial 12 weeks he took to care for his same-sex spouse did not qualify as FMLA leave and therefore did not exhaust his FMLA leave entitlement.

If the Supreme Court rules that DOMA violates the right to legal equality for same-sex couples who are legally married under state laws where they live, then the FMLA arguably would provide leave for employees to care for same-sex spouses -- at least in states where same-sex marriage is legal. 

Insights for Employers

As I have noted in previous posts, the number of employers who voluntarily are providing leave to domestic partners and same-sex spouses is increasing among Fortune 500 companies and leading business.  

Before we obtain (possible) guidance from the Supreme Court (expected in June 2013), keep the following in mind: if your leave policies provide employees time off to care for a domestic/civil union partner or same-sex spouse, employers cannot count this leave under the employee's 12-week FMLA allotment, since the FMLA does not recognize these relationships.  To ensure that you are not inadvertently setting yourself up for an FMLA interference claim when providing leave to an employee to care for a domestic/civil union partner or same-sex spouse, we recommend that employers contact their employment counsel for guidance to ensure that their leave policies are legally sound.

What!?! Time Caring for Mom in Las Vegas is FMLA Leave

Posted by Jeff Nowak on November 26, 2012

vegas.jpgThe FMLA just got a whole lot broader.

In what might be one of the key FMLA decisions of the year, a federal judge has upheld an employee's right to take FMLA leave to care for her mother during a recreational trip to Las Vegas.

Yep . . . you read it correctly.  Employee + her mother + their trip together to Vegas = FMLA leave

The Facts

The story isn't all that complicated.  Beverly Ballard was a swimming instructor.  She also had a mother who was diagnosed with end-stage congestive heart failure and was not expected to live.  Beverly was the primary care giver for her mom: she was responsible for preparing her meals; administering her mom's insulin shots and medicine; operating a pump to remove fluids from her mom's heart; bathing her mom; providing her transportation and ensuring she made it back and forth to and from her bed. 

Beverly later learned that a local charitable organization had granted her mother a "make a wish" trip to Las Vegas because she was terminally ill.  According to Beverly, the six-day trip would require her own absence from work because she would need to care for her mom during the trip.  Beverly's employer denied her request for leave, but Beverly went anyway.  In addition to administering her mom's medicine and generally looking after her while in Vegas, Beverly also "spent time with her mother playing slots, shopping on the strip, people-watching, and dining at restaurants."  Beverly fully acknowledged that her mom was not heading to Vegas for medical care, therapy or any kind of treatment.  Put simply, it was a vacation exclusively for her mom. 

Beverly's employment was terminated for unauthorized absences.  She later filed suit, alleging that her employer interfered with her ability to take FMLA leave.

An FMLA Conundrum

We've grown used to courts dismissing these kinds of cases.  Recall the Tayag case, where the court dismissed an FMLA lawsuit because the employee's trip with her seriously ill husband to meet with a "faith healer" in the Philippines also was spent visiting socially with family.  By and large, courts tend to dismiss FMLA lawsuits where the family member for whom the employee is caring is not seeking treatment at the remote destination. 

That said, I have been worried about a case like Beverly's.  Not necessarily the Vegas part (but these facts don't help).  I've been worried that a court actually would allow an employee to travel on a recreational trip to care for a family member.  The cynical side of me frets over the proverbial flood gates opening to allow any FMLA abuser to scam FMLA leave simply by taking mom on their next trip to Disney World or to climb Mt. Kilimanjaro. 

But the court reviewing Beverly's situation bucked the authority preceding it, finding that it didn't matter where Beverly was providing the care -- so long as she was providing it.   (Read the court's decision here.)

Do you know what bothers me the most about this decision?  That I can't necessarily disagree with it.  Many courts before this one have read into the FMLA an obligation that treatment be part of any trip that requires travel away from home.  Yet, as this court pointed out, the FMLA only requires that Beverly seek leave to "care for" her mom, who had a "serious health condition."  Here's the imporant part of the court's written opinion:

There is no question that [Beverly's mom] suffered from a covered "serious health condition," and was unable to care for her own basic medical, hygienic, or nutritional needs or safety.  There is also no question that the services [Beverly] provided her mother at home [long list of services] constituted, at the very least, physical care within the meaning of the FMLA.  It follows, then, that Ballard also "cared for" her mother during their trip to Las Vegas because her mother's basic medical, hygienic, and nutritional needs did not change while she was there . . .  

So long as the employee provides "care" to the family member, where the care takes place has no bearing on whether the employee receives FMLA protections.  Accordingly, . . . a reasonable jury could find that [Beverly] "cared for" her mother within the meaning of the FMLA during the time she spent traveling to Las Vegas.

Insights for Employers

Wow.  A case like this one screams out for some DOL guidance on the issue, as employers rightly fear that a decision like this one -- as reasoned as it is in this instance -- is a "get out of jail free" card for those who abuse FMLA leave.  Until then, employers should keep the following in mind:

  1. In light of the Ballard case, treatment is not required where an employee is obligated to care for a family member with a serious health condition.  So, employers clearly take a risk when they allow FMLA leave only when the trip includes some form of medical care, treatment or therapy.
  2. As a result of this reality, employers must ensure that certification clearly indicates that care by the employee is medically necessary.  If the certification is incomplete or inadequate, use the tools available to you to authenticate and clarify the certification.  Where certification is insufficient, tell your employee precisely what information is missing/insufficient and give them time to cure (at least seven days).  Where they fail to cure the deficiency, consider obtaining their permission to talk directly with their family member's health care provider to obtain the information.  In this situation, the employee has two choices: either cure the certification or grant permission for the employer to contact the health care provider.  Having the appropriate certification on file will deter would-be FMLA abusers from seeking a quick FMLA fix.
  3. Let the obvious situations go.  Call me squishy here, but when an employee's mom is terminally ill and she's seeking leave to care for her while she goes on a "make a wish" trip, let her go and use your time and effort to fight a different battle.  

In the meantime, feel free to mutter under your breath, "Serenity now"!

Best Practices: FMLA Leave to Care for an Adult Child

Posted by Jeff Nowak on October 06, 2011

Perhaps it's just me, but I recently have received several calls from clients inquiring about an employee's right to take FMLA leave to care for an adult child (i.e., age 18 or older).  Some examples include: Can a grandparent take FMLA leave to care for her daughter after the birth of her baby?  Or can an employee take leave to care for an adult child suffering from depression?  The answer is not always an easy one.  What are an employer's obligations when an employee seeks leave under the Family and Medical Leave Act to care for an adult child?  (I apologize in advance for the length of this post, but I hope it's worth the read.)

First, let's reacquaint ourselves with the law and regulations on point.  As we know, an employee is entitled to FMLA leave to care for a child with a serious health condition.  Under the regulations, "child" is defined as a son or daughter who is: 1) under the age of 18; or 2) age 18 or older and "incapable of self-care because of a mental or physical disability" at the time that FMLA leave is to commence.

Therefore, based on the applicable FMLA regulations, two factors must be present before an employee can take FMLA leave to care for his/her son or daughter: the adult child must be incapable of self-care and have a physical or mental disability.

Incapable of Self-Care

Under the regulations, the adult child must require active assistance or supervision to provide daily self-care in three or more activities of daily living or instrumental activities of daily living.  The regulations define these activities as follows:

Activities of daily living include adaptive activities such as caring appropriately for one's grooming and hygiene, bathing, dressing and eating.  Instrumental activities of daily living include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, using a post office, etc.

There is no magical line here.  Temporary conditions, such as minor pregnancy-related conditions, a bout with the flu, a broken bone or routine surgeries, typically would not result in being incapable of self-care.   On the other hand, plenty of others would: an adult child with Down syndrome, brain damage, serious illnesses or other developmental disabilities that are long term in nature.  It also could include a child who is involved in a catastrophic accident that impacts activities of daily living.  Notably, in Salas v. 3M, a federal trial court recently refused to dismiss an FMLA lawsuit when the evidence showed that that the employee's adult daughter had learning disabilities, was unable to cook, got lost easily and might have been harmed at birth by an oxygen shortage.  As you can see, it doesn't take much to create a fact issue in these cases, which is a scary proposition for employers.

Physical or Mental Disability

The regulations also require that the adult child have a physical or mental disability as defined by the ADA regulations.  Under the EEOC's recently expanded interpretation of disability under the ADA Amendments Act of 2008 (ADAAA), an employee’s burden to establish a disability is much lower, and the "new" ADA allows for the possibility that a short-term impairment lasting fewer than three to six months may very well be considered a disability.  Put another way, it has become a whole lot easier to establish that an adult child has a disability.  In turn, it arguably is easier now for an employee to take FMLA leave to care for an adult child.

As to the common conundrum of whether pregnancy-related complications constitute a disability, we recently received some guidance from the courts.  Just last month, in Serednyj v. Beverly Healthcare, LLC, a federal appellate court ruled that pregnancy-related complications can rise to the level of a "disability" within the meaning of the ADA.  However, such complications, if they are of limited duration and dissipate once a woman gives birth, may not be "substantially limiting."  Under these circumstances, the court held that no "disability" exists.  See my colleagues' analysis of the Serednyj case here.

Since we're on the topic of pregnancy, another helpful case to keep in mind is Novak v. MetroHealth Medical Cntr (pdf).  There, a federal court found that the two weeks the adult child suffered from a bout of postpartum depression failed to establish that she had a disability.  Although the Novak decision predates the ADAAA, it nevertheless is helpful guidance when determining the conditions that potentially fall in and out of the ADA.

Insights for Employers

So, what approach should employers take?  Since the ADAAA makes it significantly easier for employees to establish a disability, employers are in an incredibly difficult spot when determining whether an adult child is incapable of self-care and has a disability.  Take a situation involving a car accident.  Although the adult child might in the hospital with broken bones and other related injuries (rendering them incapable of self-care), can we determine within days after the accident whether they are considered disabled?  After all, the regulations tell us this FMLA determination must be made at the time FMLA leave is needed.  Seriously -- how can employers make an educated determination at this point?  Often, it will be difficult, if not impossible, to do so.  Therefore, we must make a reasoned decision based on the facts as we know them within that short window in which we must designate leave as FMLA protected or not.

Keep some of following best practices in mind when analyzing an employee's request for leave to care for an adult child.  I welcome more, if you have any that have worked for you (jsn@franczek.com):

  1. Set aside the misconception that an employee cannot take FMLA leave for an adult child.  Information is critical.  When the FMLA medical certification is returned to you, insist that you have a clear picture of the adult child's medical condition, the three or more activities of self-care they are unable to perform, and a good sense that the condition might be rise to the level of a disability under the new standards of the ADAAA.   
  2. Set aside the misconception that an employee can take FMLA leave to be present for the birth of his/her grandchild or to care for the daughter after a normal childbirth.  This is not covered by the FMLA.  Only where significant pregnancy complications arise do we need to turn our attention to a possible FMLA situation.
  3. Conditions that may appear short-term but serious can be a trap for employers.  Take, for instance, Patton v. Ecardio Diagnostics LLC (pdf).  There, the adult child was in a car accident, causing two broken femurs, a small hole in her lung, and a small hole in her bladder.  She recovered, but required a wheelchair to ambulate for more than one year.  Unfortunately, the employer did not have the benefit of knowing what the child's prognosis would be long term.  It had to make the decision to designate FMLA leave (or not) within the first few weeks when the child was in the hospital.  In these situations, employers are wise to look closely at the child's current medical condition and take an extremely broad view as to the possibility that a court might later find the child to have been disabled during the FMLA period.
  4. When the disability and self-care issues are obvious, don't push it.  If an employee needs leave to care for a child with Down Syndrome or mental retardation, do you really need extensive documentation?  Remember, the FMLA does not require you to obtain medical certification for every absence.  Let common sense (and a little compassion) rule here.

Are Employees Eligible for FMLA Leave When A Natural Disaster Strikes?

Posted by Jeff Nowak on May 23, 2011

flood.jpgNatural disasters like the kind we recently have witnessed in the flood-ravaged areas of the southern United States raise a host of issues for employers.  Some wonder whether they are required to pay their employees during suspended operations; others are unsure whether and to what extent health benefits should be offered.  But what about an employer's obligation to provide a leave of absence to employees during a natural disaster under laws such as the Family and Medical Leave Act?  We cover below some of the more common FMLA-related issues employers face after natural disasters, such as a tornado, hurricane or flood, hit.

An Employee's Right to Take FMLA Leave after a Natural Disaster

The FMLA does not, in itself, require employers to give employees time off to attend to personal matters arising out of a natural disaster, such as cleaning a flood-damaged basement, salvaging belongings, or searching for missing relatives.  (See our recent post where a court dismissed an employee's FMLA claim where the employee sought leave to clean up his mom's basement after a flood.)  However, employers clearly have the right to voluntarily provide leave in these situations pursuant to their personnel policies.

That being said, an employee would qualify for FMLA leave when, as a result of a natural disaster, the employee suffers a physical or mental illness or injury that meets the definition of a "serious health condition" and renders them unable to perform their job, or the employee is required to care for a spouse, child or parent with a serious health condition who is affected by the natural disaster.  Here are some examples:

  • A natural disaster causes an employee's chronic condition (such as stress, anxiety or soaring blood pressure) to flare up, rendering them unable to perform their job.  Where the medical certification supports the need for leave as a result of the natural disaster, FMLA leave is in play.
  • An employee is required to care for a family member with a serious health condition for a reason connected with the natural disaster.  Take, for instance, an employee's parent who suffers from diabetes.  If the event took out power to the parent's home, the employee may need to help administer the parent's medication, which must be refrigerated.  Similarly, the employee may need to assist a family member when his/her medical equipment is not operating because of a power outage.

Could a Natural Disaster Cause a Serious Health Condition That Implicates the FMLA?

In addition to those reasons above, employees who are physically or emotionally injured as the result of a natural disaster also may be entitled to FMLA leave.  Moreover, their impairments may be significant enough to rise to the level of disability, resulting in potential employer obligations under the Americans the Disabilities Act (ADA).  These medical conditions may arise several weeks and months after the natural disaster hits.  Thus, employers should be vigilant in watching for signs of an employee who is unusually scarred by a natural disaster. 

Take, for example, post-traumatic stress disorder.  A condition often associated with military servicemembers returning from active duty, PTSD also can arise out of a natural disaster.  In this situation, an employer would not only be required to consider its FMLA obligations for such an employee, but its ADA obligations as well.  Here, the employer may need to provide FMLA leave if the employee is unable to perform their job duties as a result of a serious health condition.  It also may be required to provide reasonable accommodations for the employee, such as the option to telecommute or work from home, or provide leave to attend counseling or receive treatment for the medical condition.  (See our comprehensive summary (pdf) of the ADA Amendments Act, which will affect these situations.)

Insights for Employers

Our prayers go out to our fellow Americans affected by the recent spring tornadoes and flooding.  As the media already has reported, employers in the south continue to do their part to assist their employees with personal tragedies arising out of this life-changing event. 

In the time ahead, employers must familiarize themselves with employment issues arising out of the natural disaster that may impact their business operations and implement appropriate procedures that will adequately protect themselves against liability in the future.  Where an employee is requesting leave as a result of the natural disaster, employers should obtain as much information as possible from the employee to determine whether the absence qualifies as protected leave.  Where there is doubt, employers should provide the requisite FMLA paperwork and allow the employee to provide the necessary information to support FMLA leave.  (A previous FMLA podcast of ours covers how an employer should respond to a request for FMLA leave.  It might be helpful here.)

Also, employers should ensure that medical certification is sufficient to cover the absence at issue.  Where more information is required, employers must follow up with an employee to obtain the information necessary to designate the absence as FMLA leave.  Moreover, when an employer has reason to doubt the reasons for FMLA leave, they have the right to seek a second opinion to ensure FMLA leave is appropriate.

 

FMLA FAQ - Does Travel Time Count as FMLA Leave?

Posted by Jeff Nowak on February 23, 2011

Q. One of our employees has asked for leave to care for a family member in another state.  Does the travel time to and from the family member count as part of the FMLA leave?

A. This clearly is a grey area in the law at present. Very few courts have given us guidance as to whether travel time itself (to care for a family member with a serious health condition) qualifies as part of the FMLA leave allotment.  My quick take: If it's clear that the employee will be required to care for the family member beginning on Day X, then a court likely would find that the travel necessary to get to the destination by Day X is so intertwined with the need for leave that it should be considered part of the protected leave as well.

Although not directly on point, take the recent case of Lane v. Pontiac Osteopathic Hospital.  In this case, the plaintiff was required to care for his mother, cook her meals and transport her to medical appointments.  However, the Court supported the employer's denial of FMLA leave when the plaintiff sought leave to clean up his mom's flooded basement.  Interestingly, the plaintiff claimed that his mother's condition would have worsened had he not taken time off to clean the basement. 

In finding for the employer, the court grappled with the concepts of "direct" vs. "indirect" care for a family member.  The court's ruling implies that where acts like "travel" to the family member are so intertwined or necessary to the need for leave itself, it should be considered part of the FMLA leave.  See also Tayag v. Lahey Clinic Hospital, Inc. (pdf), which upheld a denial of FMLA leave because a significant portion of a trip to meet with a "faith healer" actually was spent visiting socially with family.

Cleaning Up Mom's Flooded Basement Not Protected by FMLA

Posted by Jeff Nowak on July 19, 2010

Flood insurance pic.jpgFor employers, it pays to listen closely to the reason for which an employee requests time off, since the reason may not always be covered by the FMLA.  Kind of like occasions when the employee tells you he needs time off to clean his mother's flooded basement.

Take Joe Lane, a medical technologist for Pontiac Osteopathic Hospital.  Joe, who lived with his mother, sought and was granted FMLA intermittent FMLA leave for six months to care for his mom, who suffered from diabetes, high blood pressure, weight loss and arthritis.  He needed leave from time to time to provide her food and transport her to doctors' appointments, which he did without issue for the next four months.

For Joe, when it rains, it pours.  Literally.  Right into his mother's basement.  Joe was absent for four consecutive days and, in violation of the Hospital's personnel policies, he failed to call in his absences.  Thereafter, he informed the Hospital that he would need additional time off to clean up flooding in his mom's basement.  He claimed that the "flood cleaning days" should be excused because his mother had hepatitis and the stagnant water was a "breeding ground" for the disease.  The Hospital disagreed and fired him.

At that moment, Joe's FMLA claims went down the drain. 

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The Massachusetts Same-Sex Marriage Rulings And The FMLA

Posted by Bill Pokorny on July 14, 2010

The Department of Labor's recent Administrative Interpretation regarding FMLA leave for those acting in loco parentis to a child placed the spotlight on the application of FMLA leave to same-sex couples with children. However, the ruling did not address how the FMLA applies to situations where an employee seeks FMLA leave to provide care not for a child, but for a same-sex partner or spouse. However, two recent ruling by a federal court in Massachusetts may redefine the term "spouse" for purposes of FMLA leave, at least in states that recognize same-sex marriages. 

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