Deciding Whether FMLA Covers Daughter Transporting Mom to Care for Dad

May 20, 2022

An employee’s dad is being flown to another hospital for COVID-19 treatment. She needs to drive her mom to the new hospital and therefore will miss at least one day of work. Would she be eligible for Family and Medical Leave Act (FMLA) leave?

To answer the question, we must first ask whether the FMLA applies to the daughter’s employer. If her employer is a public agency or a private employer that employs 50 or more employees for at least 20 weeks in the current calendar year, then coverage would be available to her. Second, we need to determine whether she is a covered employee. There are several factors, but the most significant is whether she worked more than 1,250 hours during the 12 months preceding the FMLA leave period.

Therefore, we must make the assumption the employee works for a covered employer and she has met the eligibility requirements to take FMLA leave, making her a covered employee. For additional reference, the U.S. Department of Labor (DOL) sets forth the specific eligibility requirements on its FAQ page. A covered employee may take FMLA leave to care for an immediate family member, including a parent, with a serious health condition.

The covered employer may require supporting documentation (or certification) from a healthcare provider. The certification must be provided within 15 calendar days. If the documentation is deemed incomplete, a covered employer must allow the covered employee an opportunity to remedy any insufficiency.

What is a serious condition? It isn’t specifically defined within the FMLA’s parameters. It likely includes, however, a condition that would result in an overnight stay in a medical care facility or other chronic conditions that leave you or an immediate family member incapacitated.

A covered employee may take up to 12 weeks of FMLA leave. The leave time need not be taken consecutively. Should the leave be taken intermittently, however, it’s important for the employee to communicate with the employer because recertification may be needed.

In that scenario, it’s likely the employee would obtain approval to take FMLA leave because her father has a serious health condition. No detail was provided, however, about why her mother would be unable to transport herself to the hospital. Therefore, under the facts as we know them, eligibility would largely rely on the specificity of the employee’s request and to which parent it would apply.

Here is another factor to consider when reviewing FMLA leave requests: You could require the covered employee to use accrued paid sick leave and vacation leave. The paid leave would still have the same protections as FMLA leave but would be used before any unpaid time under the Act.

This article, slightly modified to note recent updates, was featured online in the Wisconsin Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.