Can my husband take FMLA to clean up the house, because I can't?

March 2, 2013 5:41 PM

I'm currently not working, due to what might be fibromyalgia and/or chronic fatigue (and it might not, some doctors disagree, but that's aside from the issue at hand). My husband has stepped up and taken over all house and yard work, but the mess has been building up for years as my health has been deteriorating. I'm wondering if my husband can use FMLA to take some time off to help get caught up with the house and yard work?

So it's not exactly taken care of me, but it's taking care of my living space, which I think is probably going to help me a lot; at the very least my emotional well being and possibly allergies as well (I have some pretty severe environmental allergies). But don't know if FMLA allows it because it isn't exactly me, per say, just the space I'm living in. He's managed to take care of me with the time he does have, though that even has been a struggle depending on how I'm doing any particular week or how stressed he is from work.

Before I got sick, I took care of the majority of house work and also did the gardening before I got ill. I've been out of work because of this for 14 or so months, but things were falling apart before then, while I was struggling trying to keep up with my job; so the house and yard have been messy long before that.

My husband has wonderfully tried to take everything on, but between taking care of me, the pets and having to learn new things like cooking and just the day to day stuff I used to do has left the house just a disaster and the yard worse. We have talked numerous times about hiring outside help, but without my paycheck, we're barely keeping ourselves afloat (and to be honest, we're still "operating" at a deficit with all my medical bills.). I'm trying to get disability, but that's a whole different battle.

Which got me thinking, the one thing untapped resource is that my husband has is a huge bank of sick leave, because he never gets sick or works through it. His sick leave rolls over each year. In fact most of what he's had to use has been this past year taking me to appointments, and still has an abundance of sick leave. He still has a huge amount of sick leave available though.

So can it be used for that? The ideal scenario that we came up with would be a block of time at the beginning, and then one day a week after that. He has enough sick time to support something like a month off and then one day a week for a year (plus a considerable amount left over). It would be just wonderful to have him here, plus getting everything in order and giving him extra time to learn more about cooking, etc . . . I think would make a world of difference in my care.

But, does FMLA allow for that sort of use? Google search was inconclusive. I am fairly confident my doctor would agree to at least some variation of signing off on FMLA for my husband to help. A month to get caught up would be heaven, but even a couple weeks and then some regular time off would make a world of difference.

posted by [insert clever name here] to work & money (17 answers total)

If he works for a large enough company, I think he should pursue it. Taking care of the house is taking care of you. I don't think he needs to make the distinction when talking to HR.
posted by ThePinkSuperhero at 5:50 PM on March 2 [3 favorites]

He might be able to look into intermittent FMLA, which allows protected time off over a longer time period to care for a qualifying medical issue. The intermittent aspect allows for time that is taken intermittently (like once a week) rather than in a large chunk. It seems like it would be helpful to discuss with HR - has your husband looked into it?
posted by boofidies at 5:50 PM on March 2

Is it [unpaid] FMLA leave you're looking for, or your husband's accrued paid sick leave? The latter will be up to his company's discretion, to an extent.
posted by ftm at 6:01 PM on March 2 [2 favorites]

An ill person can't just be left to fester in filth (sorry) -- cleaning your house is most definitely part of being your caretaker, which is what he would be applying for FMLA to do. I absolutely see no problem with this, though I don't think it's necessary to qualify that that's the bulk of what he'll be doing; it suffices to say that his wife is ill and requires part time care.
posted by telegraph at 6:09 PM on March 2 [2 favorites]

Housekeeping is an integral part of caretaking--so yes, it's legitimate--but I don't think he even needs to get that specific when requesting leave.
posted by elizeh at 6:15 PM on March 2 [2 favorites]

IANAL, but my coworker has had some FMLA related thing on file with HR to allow him to use all his sick time and take occasional unpaid time off to care for his morbidly obese wife. He doesn't use it all at once, but rather as she needs care.
posted by MonsieurBon at 6:20 PM on March 2

If he were to apply for FMLA, he would specify on the leave request forms that he needs intermittent time to care for his spouse who has a serious medical condition. DOL regs specifically provide for "when the family member is unable to care for his or her own medical, safety or other needs."

If his employer uses the DOL forms, there is a space there for him to describe the care he'll be providing; your medical provider will need to support the need for that care on the same form. It specifically allows for basic medical/hygenic/safety/nutritional needs.

(I have approved intermittent leave in similar situations without question, though I am not your husband's HR manager.)
posted by ThatSomething at 6:25 PM on March 2

Your husband can certainly use FMLA for that purpose (though documentation of your condition may be requested) but the question of whether his org's rules will allow use of it as paid leave is, I am pretty sure, a different question.

I'd be surprised if it didn't. But I don't believe FMLA addresses applying paid leave or not, leaving it to the org. Does his org have a website with FMLA guidance docs? Mine did. I'd be somewhat surprised if an employer who rolls over ALL sick leave didn't let you apply it to FMLA.
posted by phearlez at 6:31 PM on March 2

He should read the employee manual, check if there is an in-house class on FMLA, and ask who he needs to speak with (in HR or whatever). The company I worked for had an FMLA class. The website indicates FMLA is unpaid leave. My recollection from my job was the first 40 hours were unpaid. I didn't bother to apply because I couldn't afford to take a hit to my paycheck. Instead, I pursued every chance I could to earn additional paid leave.

So you might ask what he needs to do to tap into his accumulated paid time off. It may have nothing to do with FMLA. Alternately, ask if he can cash in some of it. If he can't take time off but can cash in some leave, the extra money can buy some help.
posted by Michele in California at 8:58 PM on March 2

The likely answer is yes, as FMLA leave "encompasses both physical and psychological care...and includes situations where ... the family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety." So, to the extent that the housework your husband performs alleviates your environmental allergies, this would appear to be squarely within the regulations.

On the other hand, if this is just him getting all the chores caught up and it doesn't have any measurable impact on your health, it's not clear that FMLA permits this type of leave for him. The regulation seems to provide for him taking leave when it provides some sort of psychological comfort and reassurance for you, but only in situations in which you're receiving in home care (which doesn't appear to be the case here). But even all that being said, it is sort of a grinchy employer that would fight on this I think.

Here's a link to a Ninth Circuit opinion that explains some of this.

So, I would frame this request in terms of emphasizing that the housework he will be doing will alleviate your allergies (assuming that's indeed true). And if he happens to cook and garden while he's home on those days while he's doing the cleaning work that helps your allergy symptoms, that's cool.

I can't imagine that your husband can't use paid sick leave for FMLA. That's standard. It would be strange if an employer did not allow employees to use any available paid sick leave for FMLA. I'm not sure if I've ever heard of that before.

Also, make sure your husband is eligible for FMLA (ie, his employer is big enough, etc.). And, even if for whatever reason he can't take FMLA for this, his employer might let him use sick leave for it anyway (or might not).

And, one other thing--your husband might have an additional entitlement to leave under state law that is more expansive than FMLA. This isn't that common, but it's possible.
posted by MoonOrb at 9:27 PM on March 2

It would be strange if an employer did not allow employees to use any available paid sick leave for FMLA. I'm not sure if I've ever heard of that before.

My employer does not. Paid sick leave is for a sick employee only (not a spouse, child, or other) and requires doctor's lines verifying the employee's illness. FMLA can be for any purpose, but is unpaid only (after vacation days are used up).

Oddly, my employer has always been quite generous with UNPAID leave, having always allowed up to a full year off with no loss of seniority. I took a year's unpaid maternity leave well before FMLA existed.

If the OP's husband can only take unpaid FMLA, it will be a tough balancing act between care needs and financial necessities. I wish you luck.
posted by RRgal at 6:45 AM on March 3

Here's the thing. FMLA is unpaid leave. You want him to take some sick time to do the cleaning, that's not FMLA.

See if your husband can couch the request as sick leave to take care of you during your illness. It's not like cleaning and gardening isn't care taking.

By the time he gives up his salary for FMLA, you might as well hire some folks to do this. In fact, hiring someone to clean and garden on a regular basis may contribute to your well-being and to your husband's. Caring for a sick partner is very stressful, being the sole salary earner AND having the responsibilities of caring for your home as well, that's just a recipe for disaster.

Pay to have a massive, deep clean, then pay someone to come regularly to keep it up.

You may have to cut costs elsewhere, but having two people out sick will be worse.
posted by Ruthless Bunny at 8:09 AM on March 3 [1 favorite]

Thanks for the wonderful advice everyone. I think I have a clearer picture of what needs to happen. And thanks to the answers here I've been able to broaden my search.

My husband said that he's pretty sure his company lets people use sick leave to take care of family members, but he's going to verify that tomorrow. And sick leave is automatically applied to FMLA, only unpaid if the employee doesn't have time or the employee opts to not use it or use vacation time instead. This might be state specific (WI); I don't think it's part of the broader FMLA coverage. My husband had a class via his job on FMLA leave a couple years ago and that's what he remembers from it. It was the specific eligibility that I was unsure of.

Moon Orb, yours was particularly helpful thus far because you gave me some important keywords to search for, which lead me to section 825.122, which states:

" . . . the individual 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). 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."

I, thank god, can still manage the ADLs most days. But I fail the IADLs. As a layperson, I'd also assume that the person assisting me is then expected to do the following; in this case the key part being maintaining a residence and cleaning. Someone, please tell me if I'm wrong in my thinking. The one thing I was having trouble finding yet is what constitutes care. The assumption I am making is that care are doing those things listed above as the ADLs and IADLs for the ill family member (in my case, me). But I couldn't find that part spelled out...

Oh and Ruthless Bunny, hiring someone would be great, but our budget is stripped to the bone, and we still are at a deficit. We refinanced under HARP earlier this year, and are going to see if we can take advantage of HAMP on our second mortgage (I've heard though that HAMP has been fruitless for a lot of people who should qualify). We make "too much" to apply for assistance like food stamps, but that was because we bought a house expecting to have two salaries. And if it weren't for my medical bills we probably would be okay. Hell, if we had managed to refinance under HARP sooner we would be in better shape. But it's cascaded out of control, we've burned through our savings, had to rack up new, unexpected debt as well as some when we thought I'd be going back to work in a few weeks. Believe me, if paying someone to come out were an option, we would do it in a heart beat. I don't disagree it's a recipe for disaster, but we're limited to the ingredients we have right now. And actually I think this will be better; extra time to do the various tasks such as cooking and cleaning will make a huge difference over my husband trying to do it all AND work AND worry about getting me to doctor appointments, etc . . .
posted by [insert clever name here] at 9:17 PM on March 3

But I couldn't find that part spelled out...

Now that I'm at a full-sized keyboard, here's the important things to realize about FMLA and paid leave, IMHO.

FMLA is a federal-level mandate of a certain minimum option an employer has to offer an employee. It's dependent on an employer being a certain size and the employee having served a certain tenure. It covers a certain set of conditions in the employee's life. If those are met then the employer must make leave allowances for the employee up to a certain number of days over a certain period of time. They can ask for certain documentation and they have to put the employee back in an equivalent - but not necessarily identical - role when s/he returns, though there's an exception for folks in critical roles (which I think, oddly is defined exclusively based on being in the top 10% of compensation).

That's a minimum, and it's based on unpaid time. An employer could certainly elect to pay for some or all of that time. In most situations paid time off is not a legal requirement. Most places you could legally give people absolutely no sick and vacation time. You might not be able to get anyone to take the job, but you can do it.

I bring this up because in your situation the issue is likely not going to be the letter of the law, but how additionally flexible your husband's employer chooses to be about it. It's entirely possible that they could, within the law, demand that all FMLA be unpaid time. You'd have to check with the Department of Labor to see if that's ever been settled. You could contact the nearest office of the Wage and Hour Division for the Department of Labor to find out that specifically.

But really, an avenue for a fight over that isn't useful to you. Them extending you this flexibility is what you need. And the long-winded point I'm finally closing in on is that there's nothing that would prevent them from allowing your husband to use FMLA for this purpose. They don't even need to be subject to FMLA to allow this - they're free to offer him this flexibility just because they feel like it.

FMLA sets a minimum time, not a maximum. It sets a minimum standard - unpaid, equivalent but not identical job - not a maximum. If your husband has 61 days of sick time banked the FMLA doesn't say they can only let him take 12 weeks worth, only that they must allow at least 12 weeks.

You are pretty well within the reasonable justification for FMLA. They can choose to ask for a doctor's justification (and, if they take issue with it, can demand up to 2 more opinions at their own expense) but you're really not dealing with a minimum standard concern. You are, I think, dealing with a reasonable employer circumstance. At this point I'd worry more about coming up with a plan between yourself and your husband and your husband and his employer than whether you meet a precise formula.
posted by phearlez at 9:46 AM on March 5 [1 favorite]

Thanks phearlez. WI has expanded FMLA on one point* - the employee can choose to use any accrued paid leave (either sick or vacation), or choose to use none at all. But my read of FMLA is that if the employee has sick leave, an employer can require it be used before unpaid leave is allowed to be used (except Wisconsin, where the employee has the choice - this covers it on page 33 [putting here for posterity].)

I think, if I'm understanding this right, an employer can't deny an employee NOT use paid sick leave for FMLA absences, only can deny the ability to use unpaid leave and save the paid leave for later. I.E. employee has 3 weeks of vacation time and one week of sick time and needs to take 4 weeks of FMLA, the employer can say you must draw from those days rather than saving for a vacation later in the year. This is what I'm taking it from, but I'll admit I'm a bit confused about the wording here.

My husbands employer more or less requires this type of leave be taken as FMLA. He might be able to work out something informal, but it's a very large company and their mood changes as quickly as their managing and executive staff does. He said employees asking about this kind of thing are generally encouraged to pursue FMLA so it's "official".

The one thing I'm getting lost on now is how to describe the care as medically necessary - that's something my doctor needs to fill out, but from my own experience of requesting FMLA for myself when I first got sick, having suggestions for the doctor in advance was beneficial. This doctor deals with a lot of patients like me, so maybe I'm getting ahead of myself. But I'm getting stuck on how to say why it's medically necessary. I think it is a fair assumption to say it is, not only from a common sense view but from the language I quote above about about IADLs.

(BTW, my husband says I'm over thinking this and they approve leave like this for other employees all the time. So perhaps I am.)

*They've actually "expanded" it on a couple of points, but they other points seem to be a less helpful option than Federal FMLA itself. I'm actually surprised Scott Walker hasn't figured out that any part benefits employees and killed it all together.
posted by [insert clever name here] at 11:05 AM on March 5

Exactly--the key here is convincing the employer that they should allow your husband to take paid leave for this since you've indicated your finances won't allow him to take unpaid leave. The Wisconsin FMLA, if the materials you've linked are accurate, apparently allows an employee to take paid leave first in using his FMLA entitlement. This is also a very, very common employer practice.

Many employers would be willing to grant your husband unpaid leave, whether it's FMLA or not, to stay home and provide care for you (certainly there are many who wouldn't, too). But if you can shoehorn your husband's leave into FMLA, it makes it much more likely that the leave can be paid, either because he's allowed to/required to use all available paid leave first per company policy or because there's a state law that permits the same.

I hesitate to confuse the issue more, but the section of the regulation you linked to that discussed the IADLs deals not with spousal care, but care of children over the age of 18. I would just have a conversation with your doctor where you say, "Look, I can't take care of myself without help right now," and describe all of the things you're having trouble doing, focusing on those things that relate to "hygiene," and "safety," and then explain that your husband will be able to take FMLA to help you with those things, provided the doctor is comfortable saying they're important for hygiene and safety, ie, they're medically necessary. The doctor doesn't need to put much on the form at first, just saying the leave is necessary should suffice. Only if the employer wants to fight on this will it be a problem, and you can deal with that if it comes up. But, like I said before, it would be a pretty jerky employer that would do this if they have no reason to believe your husband isn't trying to pull a fast one here (of course, it could happen, especially because this request is slightly outside the FMLA mainstream).
posted by MoonOrb at 11:25 AM on March 5 [1 favorite]

I think your husband is right, and like I said - since they CAN choose to do so much more, if they want to all that really matters is that they're inclined to allow it.

The DoL site has a more clear example regarding use of paid leave (and whether it can be compelled), emphasis mine:

(Q) Can I use my paid leave as FMLA leave?
Under the regulations, an employee may choose to substitute accrued paid leave for unpaid FMLA leave if the employee complies with the terms and conditions of the employer’s applicable paid leave policy. The regulations also clarify that substituting paid leave for unpaid FMLA leave means that the two types of leave run concurrently, with the employee receiving pay pursuant to the paid leave policy and receiving protection for the leave under the FMLA. If the employee does not choose to substitute applicable accrued paid leave, the employer may require the employee to do so.
Example:
Neila needs to take two hours of FMLA leave for a treatment appointment for her serious health condition. Neila would like to substitute paid sick leave for her absence, but her employer’s sick policy only permits employees to take sick leave in full days. Neila may either choose to comply with her employer’s sick leave policy by taking a full day of sick leave for her doctor’s appointment (in which case she will use a full day of FMLA leave), or she may ask her employer to waive the requirement that sick leave be used in full day increments and permit her to use two hours of sick leave for her FMLA absence. Neila can also take unpaid FMLA leave for the two hours.

posted by phearlez at 2:23 PM on March 5 [1 favorite]