FMLA eligibility

VickyB

I have an employee who has power of attorney for her
husbands aunt who also lives with them. If the aunt became so sick that the employee needed to stay home and care for her, would that be a qualification for FMLA protection.

pork1

VICKB: It very well could be, if there is legal documentation the shows your ee is the designated legal/guarding and not the husband!
Additionally, there needs to be a cerification document in your companies' possession that says that the the aunt must not live alone and that someone must be with her 24 hours a day for her safety.

Our FMLA Plan calls for this designated care giver person to be covered, Therefore, I would put her in written notice that the leave is granted IAW the Law. I would include a "date Certain" for her to return to her position (Dat after the ending date of 12 week leave.

Since she is not sick, in our plan, she is not entitled to medical coverage at the companies expense and that she will have to make monthly premium for the medical plan to remain in effect.

PORK

MIHR

I disagree. The law is very clear as to who is to be cared for in an FMLA situation and an aunt is not included, even with a power of attorney. A power of attorney just enables someone to take certain legal actions for the person, it does not convey a legal status. And, even if the aunt was somehow declared a dependant, they would still not be covered by the Act.

marc

MIHR is generally correct. However, in the regulations, 825.113 gives two instances where this person could be considered for eligibility. They are:

b) Parent means a biological parent or an individual who stands or stood in loco parentis to an employee when the employee was a son or
daughter as defined in (c) below. This term does not include parents ``in law''.
(c) 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 either under age 18, or age 18 or older and ``incapable of self-care because of a mental or physical disability.''

So, if the aunt served "in loco parentis" to the EE when the EE was a child, or if the aunt is a legal ward incapable of self-care.

Just having a power of attorney does not rise to the level of determining ward status.

LivindonSouth

A power of attorney in no way establishes the standing of en loco parentis. Although your company can, if it wants to, the Act does require that you approve this particular situation. If this were the case, anybody could get approved for FMLA absence simply by having a simply power of attorney paper signed. There are millions of incapacitated relatives living with relatives to whom this Act does not extend.

PoRk must be referencing his 'company specific' leanings. It's certainly not what the Act says.