Is my mom really not eligible for FMLA?

December 27, 2008 11:27 AM

Is my mom really not eligible for FMLA to take care of my sister when my sister gives birth?

My mother, a resident of Georgia, works for a large hospital. She has over 280 hours of flex time built up. She would like to take off four weeks to fly to California and help my sister as my sister gives birth to her first child. My mom has turned in an FMLA form (I guess it is marked optional) from my sister's doctor.

In these tough financial times, my mom wants to protect her job. She is going to take two weeks on the flex time, and take two weeks unpaid. Apparently, her work is understaffed, so they don't want her to go.

Human Resources told my mother verbally that she is not eligible for FMLA because my sister is out of state and married.

I have looked at the FMLA, and I can't see how my mother isn't eligible. If it comes down to calling a lawyer, my mom will decide not to go and stay working at her job. Is there some resource we are missing? What can my mother do?

I can post clarifications later today.

posted by Monday to law & government (13 comments total)

Can you call the Dept. of Labor? (The number I found is 1-866-4-USWAGE.) If there's some (absurd) qualification rule that your mom doesn't meet, they should be able to tell you. Conversely, if she does indeed qualify and her employer is trying to pull a fast one, they should be able to determine that as well.
posted by scody at 11:38 AM on December 27, 2008

As I read the text of the FMLA, leave is only required for the child of an employee, not a grandchild.

There is an illness provision, but I think calling a pregnancy a "serious health condition" under the FMLA to be a stretch. As per the law:

(11) SERIOUS HEALTH CONDITION- The term `serious health condition' means an illness, injury, impairment, or physical or mental condition that involves--

(A) inpatient care in a hospital, hospice, or residential medical care facility; or

(B) continuing treatment by a health care provider.

As I read that, the pregnancy would have to be exceptionally difficult and/or have a seperate illness to qualify.

That said, your sister only qualifies in the first place if she's under 18 or can't take care of herself:

(12) SON OR DAUGHTER- The term `son or daughter' means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is--

(A) under 18 years of age; or

(B) 18 years of age or older and incapable of self-care because of a mental or physical disability.

So, yes, it appears HR is right. The issue isn't that she's out of state and married (which appears to be irrelevant as per the FMLA), it's that she's neither sick, nor a son or daughter of your mother.
posted by saeculorum at 11:39 AM on December 27, 2008

No, pregnancy is covered.

"Serious health condition" means 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 medical-care facility, including any period of incapacity (i.e., inability to work, attend school, or perform other regular daily activities) or subsequent treatment in connection with such inpatient care; or

- Continuing treatment by a health care provider, which includes:

(1) A period of incapacity lasting more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also includes:
• treatment two or more times by or under the supervision of a health care provider (i.e., inperson visits, the first within 7 days and both within 30 days of the first day of incapacity); or
• one treatment by a health care provider (i.e., an in-person visit within 7 days of the first day of incapacity) with a continuing regimen of treatment (e.g., prescription medication, physical therapy); or

(2) Any period of incapacity related to pregnancy or for prenatal care. A visit to the health care provider is not necessary for each absence.

posted by scody at 11:42 AM on December 27, 2008

It seems to me that even if that is the case (note, it's not the interpretation of the law that matters, it is the law itself), there's still the issue that the OP's sister is not a "son or daughter" of the OP's mother because the sister is (probably) over 18 and (probably) not mentally/physically disabled.
posted by saeculorum at 12:00 PM on December 27, 2008

But it also depends on state law, as well. An adult child who is not disabled doesn't qualify under federal law, but some state medical leave laws can expand leave to include caring for an adult child who has a serious (though temporary) illness or injury. I don't know if Georgia law includes this, which is why the OP's mother should probably call both the U.S. and the Georgia department of labor.
posted by scody at 12:07 PM on December 27, 2008

Pregnancy and giving birth, in itself, is not an illness, injury, or disability. Are there unusual circumstances with your sister, that makes your mom believe she will be disabled after giving birth?

In the Dept. of Labor FAQ for FMLA, it has several pertinent points.

-- Who is considered an immediate "family member" for purposes of taking FMLA leave?

An employee’s spouse, children (son or daughter), and parents are immediate family members for purposes of FMLA. The term "parent" does not include a parent "in-law". The terms son or daughter do not include individuals age 18 or over unless they are "incapable of self-care" because of mental or physical disability that limits one or more of the "major life activities" as those terms are defined in regulations issued by the Equal Employment Opportunity Commission (EEOC) under the Americans With Disabilities Act (ADA).

-- Q: Does the law guarantee paid time off?

No. The FMLA only requires unpaid leave. However, the law permits an employee to elect, or the employer to require the employee, to use accrued paid vacation leave or, subject to certain restrictions, sick or family leave, for some or all of the FMLA leave period. When paid leave is substituted for unpaid FMLA leave, it may be counted against the 12-week FMLA leave entitlement.
posted by Houstonian at 12:24 PM on December 27, 2008

Your mom is in a union, right? She should contact them.
posted by oneirodynia at 12:25 PM on December 27, 2008

FMLA says nothing that I can find about not covering "out of state" or "married" relatives, so unless there is case law that establishes this, your mom's HR reasons for denying her leave are, I believe, incorrect.
posted by zippy at 12:43 PM on December 27, 2008

oneirodynia: Not all hospitals are union. My hospital isn't.

Your mom needs to get a copy of the FMLA rules, in print, from the hospital. Don't accept verbal nonsense. In print it will explicitly cover exceptions.
posted by cobaltnine at 1:01 PM on December 27, 2008 [1 favorite has favorites]

It does sound like this situation is outside the intent of the FMLA. My understanding of it is that its intent is to REQUIRE employers to let people care for themselves and dependents without retribution. It's purpose is to protect the employee if they are, more or less, forced by circumstances to not work for a time. Not to create a new class of time off.

But yes, she should have her employer show in writing what the policy is, so that she can show how her situation fits in the policy.

scoody- pregnancy is covered, but only for individuals fitting the relationship test. Since (presumably) the daughter is over 18 and not suffering from any other disability, she wouldn't be covered by the FMLA as it pertains to her mother.
posted by gjc at 2:08 PM on December 27, 2008

Your mom has 280 hours of flex time. Why not take four weeks (160 hours) of that?
posted by Dec One at 3:21 PM on December 27, 2008

My mother isn't in a union.

Part of the problem is that her employers don't let her use the big chunks of time that she accrues. Her position has lots of turnover and requires weeks of training to be useful. Even with 45 days notice, they may not be able to have someone trained in time.

My sister is over 18, and she doesn't have any disability other than being pregnant. That alone makes is seem that my mother isn't elegible for the FMLA.
posted by Monday at 7:05 PM on December 27, 2008

Can any of your Mom's job be done remotely? Can she take 2 weeks using earned time, come back for a couple weeks, go back, using more flex time? The easier she makes it for her employer to say Yes to her request, the better. It would surprise me if her situation met the requirements of the FMLA.

Is her flex time usable as vacation? If so, that level of accrual suggests that her employer is not allowing her to use part of her compensation. If it's sick/personal time, then she may be SOL.
posted by theora55 at 11:39 AM on December 28, 2008