Can a Worker Use FMLA Leave to Care for Kids While Her Husband Is in Rehab?

 

Dana Wilkie By Dana Wilkie October 1, 2019
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​Most employers recognize that if they are covered by the federal Family and Medical Leave Act (FMLA), then their workers can take up to 12 weeks of unpaid leave to care for a newborn child or a seriously ill relative, or to recover from a serious illness.

But what if an employee requests FMLA leave because her husband is going into an addiction-rehabilitation facility? She won't be looking after him, but she will visit him and provide emotional support.

Or what if she requests FMLA leave because while her husband's in rehab, she must stay home from work to watch their young children?

Are those types of requests covered by the FMLA?

This question surfaced recently on SHRM Connect, the Society for Human Resource Management's online discussion platform.

Opinions from lawyers and other FMLA experts are mixed.

[SHRM members-only policy: Leave Request Procedure]

Treatment for an Employee's Own Substance Abuse Is Covered

The law makes it clear that a worker can take FMLA leave to treat his or her own substance abuse. However, the treatment must be supervised by a health care provider. In other words, a worker can't take leave to recover from a night out drinking, said Abigail O'Connell, senior counsel with Sun Life Financial in Wellesley Hills, Mass.

Employers should ask for documentation that the worker is actually attending a substance-abuse program, said Jeff Nowak, a shareholder with Littler in Chicago.

"Is [the employee] seeking FMLA leave while she still is abusing the substance but has not yet made the decision to enter treatment?" he asked. "Or is the leave request specifically for treatment? The former is not covered by the FMLA, but the latter is."

Trickier Questions

The trickier question is what sort of care is the worker who wants FMLA leave providing to the relative who is being treated, especially if the rehab facility is providing 24/7 care and visiting hours are limited?

Courts generally have found that if the time off is only indirectly related to a relative's illness—for example, getting the home ready for the relative's return from the hospital or keeping in touch with the relative by phone—then it's likely not covered by the FMLA because such tasks lack the in-person care standard that FMLA coverage requires, legal experts said.

"What sort of care is [the spouse] providing?" asked Joan E. Casciari, partner and associate general counsel for employment with Seyfarth Shaw LLP in Chicago. "The regulations define 'care' as where the family member is unable to care for his or her own basic medical, hygienic or nutritional needs or safety, or is unable to transport himself to the doctor. The term also includes providing psychological comfort and reassurance [that] would be beneficial to" the patient.

"Will she visit her husband, if allowed, during his substance-abuse treatment?" Nowak asked. "That … makes a quite a difference. Since the 'caring for' function can consist of psychological care, those visits likely are covered by the FMLA. As the employer, I first want to understand from the employee precisely what are the caring duties the employee will be performing during treatment. If there is not a direct connection to the treatment, it arguably is not covered by the FMLA."

FMLA Leave to Care for Kids

The stickiest issue, legal experts said, is whether a wife, for example, can take FMLA leave to care for her young children while her husband is in a rehabilitation facility for substance abuse.

O'Connell seemed confident that the FMLA wouldn't cover this.

While "taking leave to care for a family member who is receiving substance-abuse treatment is a covered leave reason under the FMLA and would fit into the 'care of a family member' leave type," she said, "taking leave to act as a replacement child care provider for that family member is not a covered leave reason."

In at least one case, however, a judge found that a father's caring for his children while their mother was in the hospital with a sick child was close enough to the FMLA standards that the father's case alleging termination in violation of the FMLA could move to trial. The plaintiff and his employer eventually settled out of court.

But Casciari described the case as "a bit of an outlier."

In the case of a husband entering a treatment facility for substance abuse, for example, in order for the wife to be entitled to FMLA leave, Casciari said, "the wife would have to be caring for the husband while he's in treatment, which probably does not happen [because] visiting is pretty limited in those programs."

On the other hand, she said, if one of the children she's caring for is disabled while her husband's in rehab, "it might be possible to make an FMLA case."

Beyond the Law

Even if the FMLA doesn't cover this wife's situation, thoughtful employers will want to consider other ways to accommodate her, Nowak said.

"As HR professionals and counselors to employers, we must remember above all else that we are in the human relations business," he said. "Simple words, such as 'How can I help you as you deal with this difficult family situation?' can go a long way to connecting and empathizing with your employee. Just as important, though, [this question] likely elicits the information you need to make an initial determination about whether FMLA may apply to the absence." 

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