Give her an out?

hrbanker · February 2004

An employee gave several weeks notice of needing off Monday to be at the hospital for her adult daughter's surgery. Friday before the surgery she told the manager she was going to take a few extra days. Manager said, "NO, we're too short handed." She said OK.

Monday just before closing she called the asst manager and said she would be off the rest of the week to stay with her daughter but could come in Friday & Saturday if we really needed her.

She hasn't requested FMLA and it probably wouldn't apply since daughter was in the hospital. Should I be nice guy and ask her to verify it was FMLA or just write her up for unexcused absence?

Your wisdom is appreciated.

Don D · February 2004

Although the event may have very well qualified for FMLA, you can deny it due to the fact that she did not give sufficient notice in an appropriate application or request for FML absence. 'In Advance' is required unless an unforseeable emergency or impractical to give notice. The surgery was obviously scheduled and she had ample time to request FMLA. She waited far too late to request additional time off. FMLA, in my opinion, is not an option at this point.

Balloonman · February 2004

What part of no did she not understand? Write up for unexcused abscence.
My $0.02 worth.
DJ The Balloonman

hrbanker · February 2004

Thanks, guys. That was my gut reaction but sometimes I think I'm too harsh. It's nice getting confirmation. ...Actually hadn't thought about the advance notice on FMLA. Good point, Don.

Ranger · February 2004

Please clear up something for me. I thought FMLA applied to minor children, not adult children. Have I been wrong for years? (Luckily anyone who has requested leave for an adult child wasn't otherwise eligible.)

Don D · February 2004

It's probably not nearly as frequent, but can apply to an adult child. If the adult child the IRS/SS definition of emotionally or mentally challenged; or, the adult child is unable to tend to or meet their own physical needs while ill, such as following surgery. Such as would be the case if the adult child could not clothe, bathe, feed himself or walk unassisted or drive to the doctor, etc.

Carey · February 2004

I thought that an adult child would not qualify as a "child" under FMLA if they can't care for themselves only because of the temporary illness/condition (as after surgery).

From the DOL Compoliance Guide: They have to be "incapable of self care" because of a mental or physical disability that limits one or more of the major life activities as defined under the ADA.

Basically I thought the adult child already had to be incapable of self care and then if they had a serious health condition, the parent could take a leave under FMLA. Maybe I've been interpreting this wrong also. We've never had this situation, surprisingly. Is there an FMLA expert who can clarify?

Ruskanen · February 2004

I always like to err on the side of generous when it comes to FMLA. If there is something that might trigger FMLA i.e. hospitalization, I would approach the employee and ask what the situation is and how much time they think they need off. I've read too many cases where the employer did not notify the employee when it should have. Usually if there is something that should tip off employer that there is a possibility of FML, then it's back in the employer's court.

I don't know why FMLA wouldn't qualify for adult children. It covers parents and spouses, and they are adults. If a wife has to work and the husband has surgery and needs care and help with small children, why couldn't a parent take off work to help? What about in the case of a debilitating disease like Lou Gehrig's disease? Patients with Lou Gehrig's disease often need 24 hour care and families will set up shifts of family and friends to come in and help. It's too much for one person. My family went through that last year with my mother and I took time off every week to give dad a break.

System · February 2004

I would tread lightly. The FMLA covers adult children that are "disabled," but I think courts are pretty loose with their definition of disabled compared with the ADA. See the 2001 case, Navarro v. Pfizer Corporation, where an appeals court said a pregnant woman with high blood pressure might be disabled under the FMLA even if it was temporary.

And I'm sure the doctor in your case would say the daughter needs the mother, and the mother will say she didn't foresee that the daughter would need her so much.

James Sokolowski
HRhero.com

hrbanker · February 2004

More food for thought. Thanks for your comments.

This employee took FMLA to care for her mother after surgery last November and is aware of the request form. Since she hasn't mentioned FMLA but just took days off, I'm leaning toward giving the warning. If she comes back and says, "But it was FMLA.", we can request the documentation and (if it pans out) remove the warning.

Ain't it fun? It's a constant balancing act.

Paul in Cannon Beach · February 2004

It is a balancing act in so many ways. I don't think the legal issue is the only consideration. You also have to consider (in my opinion) what is the right thing to do. What would you want done if you were the EE with the daughter in the hospital? The risk there is that some people will take advantage of you.

Shadowfax · February 2004

I think on the face of it it is FMLA, and why not ask whether it is FMLA or not? If it is, burn the leave; if it isn't then it is unexcused absence and deal with the absence per policy.

Give her an out?

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