Thursday, January 30, 2014

FMLA Leave: What Qualifies?

Most HR professionals, and certainly supervisors and managers, find the Family and Medical Leave Act (FMLA) frustrating for many reasons. Not the least of which is knowing what does or does not qualify as FMLA protected leave. It’s one thing if the situation you’re faced with is one of those unique - doesn’t quite fit the examples – deals, but sometimes even the "usual" can be tricky. Here, I’ll try to give you some basic guidance on what qualifies as FMLA leave.

As we know, the FMLA grants eligible employees up to 12 weeks of unpaid leave in a 12-month period for the birth, adoption, or foster care placement of a child; the employee’s or a family member’s serious health condition; or a qualifying exigency related to a covered family member’s covered active duty or call to covered active duty.

There are six basic qualifying events that entitle employees to take leave under the FMLA:

  • The birth of a child, and in order to care for that newborn child
  • The placement of a child under the age of 18 with the employee for adoption or foster care, and to care for that child
  • To care for a spouse, daughter, son, or parent of the employee, if that person has a serious health condition
  • An employee’s own serious health condition that makes the employee unable to perform the essential functions of his or her job
  • Because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty, or has been called to covered active duty status (or has been notified of an impending call or order to covered active duty)
  • Up to 26 weeks of leave during a single 12-month period if the employee is the spouse, son, daughter, parent, or next of kin caring for a covered service member or veteran recovering from a serious injury or illness incurred in the line of duty on active duty in the armed forces, or that existed before the beginning of the member’s active duty and was aggravated by, or that manifested itself before or after the member became a veteran

It should be noted that leaves taken for the first two reasons listed (birth and foster/adoptive placement) are leaves intended to give the new parents time to "bond" with their child. The FMLA draws distinctions between leave for "bonding" and leave for serious health conditions, or military family leaves.

Under the FMLA, eligible employees can take a full 12 weeks of FMLA leave (assuming that they have had no other leave-qualifying events during the 12-month period) for the birth, and to be with a healthy newborn child (so-called "bonding leave"). Bonding leave is available to either men or women, and no medical certification is required. However, bonding leave must be completed within 12 months of the date of birth or placement. When both husband and wife work for the same employer, the full amount of leave is limited to an aggregate of 12 weeks.

Intermittent or reduced schedule leave after the birth to be with a healthy newborn child can only be used if the employer agrees.

Eligible employees are entitled to up to 12 weeks of FMLA leave for placement with the employee of a son or daughter for adoption or foster care.

Employees may take FMLA leave before the actual placement or adoption of a child if an absence from work is required for the placement for adoption or foster care to proceed. For example, the employee may need leave time to attend required counseling sessions, appear in court, or travel to another country to complete an adoption.

Foster care placement must be made by an agreement of the state as a result of either:

1. An agreement between the parent or guardian that the child be removed from the home; or
2. A judicial determination of the need for foster care.

The foster parent may be the biological relative of the child, but state action must still be involved in the removal of the child from parental custody.

Spouses employed by same employer. Spouses who are each eligible for FMLA leave and are employed by the same covered employer are limited to a combined total of 12 weeks of leave during any 12-month period if the leave is taken for the placement of the employee’s son or daughter or to care for the child after placement. A covered "spouse" includes the spouse of an employee in a same-sex marriage if the employee resides in a state that legally recognizes same-sex marriage.

SERIOUS HEALTH CONDITIONS  Most leave taken under the FMLA is related in some way to serious health conditions—either the employee’s own or that of a family member. The FMLA regulations provide guidelines on what constitutes a serious health condition; but they are only guidelines. In the end, decisions as to whether a condition falls under FMLA’s protection must be made on a case-by-case basis.

The definition of a "serious health condition" includes:

1. An illness, injury, impairment, or physical or mental condition that involves either inpatient care
(i.e., an overnight stay in a hospital, hospice, or residential care facility); or
2. Continuing treatment by a healthcare provider.

The definition of what constitutes a "serious illness or injury" for the purposes of FMLA leave to care for a military service member is different and won’t be discussed here.

Continuing Treatment  The FMLA changed the definition of what qualifies as "continuing treatment" by a healthcare provider. Under the regulations, to qualify as continuing treatment, the condition must involve:

  • A period of incapacity of more than 3 consecutive, full calendar days, and any subsequent treatment or period of incapacity for the same condition that also involves either: 
  • Treatment by a healthcare provider two or more times within 30 days of the first day of incapacity, unless extenuating circumstances exist; or
  • Treatment by a healthcare provider at least once that results in a regimen of continuing treatment under the supervision of the healthcare provider. (The requirement for treatment by a healthcare provider means an in-person visit to that healthcare provider. The first (or only) in-person treatment visit must take place within 7 days of the first day of incapacity.)
  • Any period of incapacity because of pregnancy or prenatal care.
  • Any period of incapacity because of a chronic, serious condition. A chronic, serious health condition is one that requires periodic visits, at least twice a year, for treatment by a healthcare provider or by a nurse under direct supervision of a healthcare provider, which continues over an extended period of time (including recurring episodes of a single underlying condition), and which may cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy).
  • A period of incapacity that is permanent or long-term because of a condition for which treatment may not be effective (e.g., Alzheimer’s disease).

Circumstances of Leave 
  • Any period of absence to receive multiple treatments by a healthcare provider (e.g., for reconstructive surgery after an accident or injury) or for a condition that would likely result in a period of incapacity of more than 3 consecutive, full days if untreated, such as for cancer (chemotherapy) or kidney disease (dialysis).
  • Absences due to pregnancy, prenatal care, or chronic conditions qualify for FMLA leave even though the employee or the covered family member does not receive treatment from a healthcare provider during the absence, and even if the absence does not last more than 3 consecutive, full calendar days.

For example, an employee with asthma may not be able to report for work due to an asthma attack or because the employee’s healthcare provider has advised the employee to stay home when the pollen count exceeds a certain level. Or, an employee who is pregnant may be unable to report to work because of severe morning sickness.

Incapacity.  The term "incapacity" means inability to work, attend school, or perform other regular daily activities due to the serious health condition, treatment, or recovery.

Treatment.  Covered "treatment" includes (but is not limited to) examinations to determine if a serious health condition exists and evaluations of the condition. Treatment does not include routine physical examinations, eye examinations, or dental examinations. A regimen of continuing treatment includes, for example, a course of prescription medication (e.g., an antibiotic) or therapy requiring special equipment to resolve or alleviate the health condition (e.g., oxygen).

A regimen of continuing treatment that includes the taking of over-the-counter medications such as aspirin, antihistamines, or salves; or bed rest, drinking fluids, exercise, and other similar activities that can be initiated without a visit to a healthcare provider, is not, by itself, sufficient to constitute a regimen of continuing treatment for purposes of FMLA leave.

Depending on the type of FMLA leave taken, the definition of a covered family member, serious health condition, healthcare provider, and other critical terminology will differ. For example, for the purpose of most FMLA leave for a serious health condition, a covered son or daughter is a person under the age of 18 (or over the age of 18 and incapable of self-care). However, for military family leave, the covered son or daughter may be "of any age" (since a person must be aged 18 or older to serve in the military).

FMLA’s regulations allow an employer to require the employee giving notice of the need for leave to provide reasonable documentation of family relationships or a statement of family relationships. The documentation may take the form of a statement from the employee, a birth certificate, a marriage license, etc.

"Spouse" means a husband or wife as defined or recognized under state law for purposes of marriages in the state where the employee resides, including same-sex marriages and common-law marriages in states where such relationships are legally recognized.

In states that recognize domestic partnerships and civil unions, but do not recognize same-sex marriages, the federal FMLA’s definition of a "spouse" will still not apply.

FMLA’s regulations clarify that a husband is entitled to FMLA leave if needed to care for his pregnant spouse who is incapacitated or if needed to care for her during her prenatal care, or if needed to care for the spouse following the birth of a child if the spouse has a serious health condition.

"Parent" means a biological, adoptive, step- or foster father or mother, or any other individual who stood in loco parentis to the employee when the employee was a child. This term does not include parents-in-law. Note, however, that some state FMLA laws do expand the definition of parent to include parents-in-law.

Son or daughter 
"Son or daughter" means a biological, adopted, step-, or foster child; a legal ward; or a child of a person standing in loco parentis who is either under the age of 18, or aged 18 or older and "incapable of self-care because of a mental or physical disability" at the time that FMLA leave is to commence.

Adult children 
A parent otherwise eligible for FMLA leave can use that leave to care for a child 18 years of age or older if the following four criteria are met:

1. The adult child has a "disability" under the ADA;
2. He or she is "incapable of self-care" due to that disability; or
3. He or she has a "serious health condition" under the FMLA; and
4. He or she needs care due to the serious health condition.

Whether the adult child’s disability began before or after the age of 18 has no bearing on eligibility.

An adult child is "incapable of self-care" if the child requires "active assistance or supervision to provide daily self-care" in three or more of the ‘activities of daily living’ (ADLs) or ‘instrumental activities of daily living’ (IADLs). ADLs include caring for one’s grooming and hygiene, bathing, dressing, and eating. IADLs include "cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, [and] using a post office."

The adult child’s medical condition must be both a disability under the ADA and a serious health condition under the FMLA. A chronic medical condition will likely meet both definitions. However, since "minor and transitory" impairments are not disabilities under the ADA, FMLA leave would not be avail- able to the parent of an adult child with such impairment.

The requirement that the parent is "needed to care" for the adult children encompasses both physical and psychological care. The term "needed to care" also includes providing psychological comfort and reassurance that would be beneficial to a son or daughter with a serious health condition who is receiving inpatient or home care.

The DOL Wage and Hour Division’s Administrator’s Interpretation No. 2013-1 (January 14, 2013) provides some examples of whether an employee would be needed to care for an adult child under the FMLA:

An employee’s 37-year-old daughter suffers a shattered pelvis in a car accident that substantially limits her in a number of major life activities (i.e., walking, standing, sitting, etc.). As a result of this injury, the daughter is hospitalized for 2 weeks and under the ongoing care of a healthcare provider. Although she is expected to recover, she will be substantially limited in walking for 6 months. If she needs assistance in three or more activities of daily living, such as bathing, dressing, and maintaining a residence, she will qualify as an adult "daughter" under the FMLA as she is incapable of self-care because of a disability. The daughter’s shattered pelvis would also be a serious health condition under the FMLA, and her parent would be entitled to take FMLA-protected leave to provide care for her immediately and throughout the time that she continues to be incapable of self-care because of the disability.

An employee’s 25-year-old son has diabetes, but lives independently and does not need assistance with any ADLs or IADLs. Although the young man’s diabetes qualifies as a disability under the ADA because it substantially limits a major life activity (i.e., endocrine function), he will not be considered an adult "son" for purposes of the FMLA because he is capable of providing daily self-care without assistance or supervision. Therefore, if the son is admitted to a hospital overnight for observation due to a skiing accident that does not render him disabled, his parent will not be entitled to take FMLA leave to care for him because he is over the age of 18 and not incapable of self-care due to a mental or physical disability.
If the son later becomes unable to walk and is also unable to care for his own hygiene, dress himself, and bathe due to complications of his diabetes, he will be considered an adult "son" as he is incapable of self-care due to a disability. The son’s diabetes will be both a disability under the ADA and a chronic serious health condition under the FMLA because his condition requires continuing treatment by a doctor (e.g., regular kidney dialysis appointments). If his parent is needed to care for him, his parent may, therefore, take FMLA-protected leave to do so.

(U.S. Department of Labor Wage and Hour Division’s Administrator’s Interpretation No.
2013-1 (January 14, 2013))

A mother is entitled to FMLA leave for incapacity due to pregnancy, for prenatal care, or for her own serious health condition following the birth of the child. Circumstances may require that FMLA leave begin before the actual date of birth of a child. An expectant mother may take FMLA leave before the birth of the child for prenatal care or if her condition makes her unable to work. Some state laws also provide special leave for pregnant employees who are disabled by their pregnancy. Check your state maternity and pregnancy leave.

Under the FMLA, a mother is entitled to leave for incapacity due to pregnancy even though she does not receive treatment from a healthcare provider during the absence, and even if the absence does not last for more than 3 consecutive calendar days. A husband is also entitled to FMLA leave if needed to care for his pregnant spouse who is incapacitated, if needed to care for her during her prenatal care, or if needed to care for the spouse following the birth of a child if the spouse has a serious health condition.

The FMLA is really a very involved law with a lot of moving parts. There are any number of guides available to help you navigate through the confusion and administer your FMLA leave legally and consistently. In fact, there are whole seminars, conferences and courses devoted just to FMLA! This post covered just one aspect. I encourage anyone responsible for administering leave to avail themselves of any of these comprehensive guides.

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