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. 

Putting aside Joe’s failure to previously mention his mom’s hepatitis, the federal trial court in Lane v. Pontiac Osteopathic Hospital rejected his FMLA interference claims for a number of reasons:

1.  Cleaning the flood was not listed among his enumerated duties in the medical certification form;

2.  Joe had not established that cleaning mom’s basement met the definition of “caring for” a family member with a serious health condition;

3.  Joe could not show that his mom’s hepatitis was in danger of being aggravated if he did not clean the basement immediately; and

4.  In any event, Joe’s request for leave to clean his mom’s basement failed to put the employer on notice of the need for FMLA leave.

The Impact of the Court Ruling

In recent years, courts have expanded the scope of the “caring for” FMLA leave entitlement, often finding new and, at times, creative ways to afford employees FMLA leave.  The Lane ruling slaps back that expansion, thereby drawing more of a distinct line between those activities that provide “direct” care to the family member (e.g., providing a meal or transport, or sitting bedside) and those that provide “indirect” care (e.g., salvaging mom’s basement).  Although the former regularly qualify for FMLA leave, the latter typically do not.

That being said, one is left to wonder whether Joe would have fared better (either at work or in court) had his request for a 3-day absence not come on the heels of a 4-day unexplained absence.  Could Joe have better articulated that his “direct” care for mom was so intertwined with the “indirect” duties that they are inseparable?  We’re left to wonder.

Insights for Employers

The Lane decision reminds employers to seek answers to the following when determining whether an employee is “caring for” a family member under the FMLA:

  • Has the employee put us on notice of the need for FMLA-qualifying leave (as opposed to a general leave of absence, which may not be protected by law)?
  • Are the “caring for” responsibilities identified by the employee in this instance enumerated on the latest medical certification on file?  If not, do we have an obligation to seek recertification?
  • What is the harm to the family member if this assistance is not provided?
  • Can the family member perform these “caring for” duties him/herself?
  • Are the responsibilities to be performed on this occasion so intertwined with other duties in which we previously have allowed FMLA leave? 

 Thoughtfully thinking through these questions will help you avoid the flood, whenever it comes.