Leaves of Absence for Taking Care of Kin
Family and Medical Leave Act ("FMLA") and California Family Rights Act ("CFRA"):
- Birth of a son or daughter of the employee, in order to care for the son or daughter.
- Placing the son or daughter with the employee for adoption or foster care.
- To care for a spouse, son, daughter, or parent of the employee if the spouse, son, daughter, or parent has a serious health condition. 29 USCS § 2612.
"Son or daughter" means "biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis," the child must be either under 18 years of age or age 18 or older and "incapable of self-care because of a mental or physical disability" at the time that FMLA leave is to commence. 29 CFR 825.122. "Loco Parentis" is defined as an individual who has the "day-to-day responsibilities to care for and financially support a child," it does not require a biological or legal relationship. 29 CFR 825.122(c)(3).
Under CFRA and California law "domestic partners" have "the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses." Cal. Fam. Code § 297.5. Therefore spouses and domestic partners have the same rights to leaves of absence to care for domestic partners or spouses who have a serious health condition.
"Parent" means "a biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the employee when the employee was a son or daughter." 29 CFR 825.122.
"To care for" includes physical and psychological care. 29 CFR 825.124(a). Examples include situations 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 or herself to the doctor," "providing psychological comfort and reassurance which would be beneficial to a child, spouse or parent with a serious health condition who is receiving inpatient or home care," and when employee needs to be a "substitute for others who normally care for the family member or covered servicemember, or to make arrangements for changes in care, such as transfer to a nursing home." 29 CFR 825.124.
- The employee is unable to perform the functions of their job because of a serious health condition. 29 USCS § 2612(a)(1)(A)-(D).
Serious health condition under FMLA is defined as "an illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, hospice, or residential medical care facility, (staying overnight or longer at a hospital, hospice or residential medical care facility) or continuing treatment by a health care provider." 29 USCS § 2611(11). Examples include:
- A mother is entitled to leave for incapacity (being unable to work, attend school or perform other regular daily activity) because of her pregnancy, for prenatal care, or for a serious health condition after the birth of the child; (29 CFR 825.120)
- A husband is entitled to leave to care for his pregnant spouse if she is incapacitated or if the leave is needed to care for her during her prenatal care, or if it is needed to care for his pregnant spouse after the birth of the child if the spouse has a serious health condition; (29 CFR 825.120)
- Chronic conditions and those related to pregnancy qualify for FMLA even if the person with the condition does not receive treatment from a health care provider during the period of absence and the absence does not last more than three consecutive days. "For example, an employee with asthma may be unable to report for work due to the onset of an asthma attack [or]...[a]n employee who is pregnant may be unable to report to work because of severe morning sickness." 29 CFR 825.115. 2 CCR 7297.0(o).
- A qualifying emergency has happened because the employee's spouse, son, daughter, or parent is on active duty in the Armed Forces. 29 USCS § 2612(a)(1)(E).
Under FMLA an employee is not required to take their leave of absence all at one time. The employee is allowed to take the leave "intermittently or on a reduced leave schedule. Intermittent leave is leave taken "in separate blocks of time." A reduced leave schedule is "a leave schedule that reduces an employee's usual number of working hours per workweek, or hours per workday. A reduced leave schedule is a change in the employee's schedule for a period of time, normally from full-time to part-time." 29 CFR 825.202(a).
For an employee to receive leave covered under FMLA/CFRA from his or her employer, the employee must give the employer notice, either verbal or written. 29 CFR 825.302. The employee's notice must let the employee know the reason for the leave that is covered by FMLA/CFRA (serious health condition; birth of child or adoption or foster care of child; taking care of spouse, child, or parent with serious health condition.; or emergency because child, spouse, or parent is on active duty with Armed Forces.). 29 CFR 825.302. The notice must also contain the timing and duration the employee anticipates the leave to take up. 29 CFR 825.302.
When an employee comes back from FMLA/CFRA leave, they are entitled to be reinstated by the employer to their same position or an equivalent position. 29 USCS § 2614. The equivalent position is to have "equivalent employment benefits, pay, and other terms and conditions of employment." 29 USCS § 2614. Under FMLA/CFRA the employer must also provide the employee with a written guarantee saying that the employee will be reinstated after his or her leave to the same position or a comparable position. 2 CCR 7297.2.Possible Scenarios Of Discrimination, Termination For Taking Leave To Take Care Of A Family Member
Federal and state laws not only entitle employees to a leave of absence when they become ill, injured or disabled; the employees also have rights when they are called upon to provide the necessary dedicated care for a child, spouse, or even a parent who becomes ill or injured. However, many employers continue to discriminate against and terminate employees who are in such a situation. Following are some examples of this type of employment discrimination and termination practices. Your circumstances may not be exactly like the ones illustrated below, because each person’s situation is different. However, if something similar to the scenarios illustrated below is happening or has happened to you, feel free to contact our office.
Leave For the Care of A Child: For an employee whose child becomes seriously ill or injured and requires immediate medical attention, making sure that the child receives that care becomes a top-priority matter. The parent/employee will need to take time off from work to get the child to the hospital and make sure that the child recovers before even considering returning to work. At some point, the employee may call Human Resources to inform them that he or she will need a few days off while the child is under the care of the hospital.
Sometimes when the child is released by the hospital, the parent/employee must be available to continuously monitor the child’s vital signs and recovery, provide medication on a schedule set by the doctors, transport the child to follow-up appointments, and generally provide the child with care and nurture. Under such circumstances, the employee will need either an extended or intermittent leave of absence until the child is well enough to return to his or her routine at school, work, or day care, at which point the parent can return to his or her routine as an employee.
However, the employer may not wish to accommodate this request for additional time off. But rather than refusing to grant the leave at the time of the request, the employer may wait until the employee has returned to work and terminate him or her at that time, giving as a reason that it’s “not working out,” that the employee was “not a good fit,” or that the position was eliminated while he or she was on leave.
Or the employer may send a termination letter to the employee while the employee is on leave, saying that the employee’s position has been eliminated. Management might even blame the termination on a business slowdown or reduction in force, regardless of the facts. Parents have rights. If you are or have been in a situation like this, contact our office.
Leave For The Care Of A Spouse: An employee whose spouse becomes disabled due to a serious illness or injury – or pregnancy in the case of the employee’s wife – also has rights. Society sanctions the bond of marriage as it gives the responsible position of caregiver to an individual who is not bound to his or her spouse by blood, i.e., through a parent-child relationship. This sanctioning takes the form of federal and state laws that protect an employee who needs to take a leave of absence from the workplace to take much needed care of his or her spouse when the spouse suffers an injury or serious illness, or becomes disabled as the result of pregnancy, and is unable to manage his or her vital personal needs.
For instance, sometimes complications develop during the pregnancy of an employee’s spouse. The spouse’s doctor may order bed-rest at home for her for the duration of the term to prevent further complications, including injury or even death to either the fetus or the mother, or both. An at-risk pregnancy such as this may also mean frequent visits to the doctor’s office or hospital.
In the event of this or any serious injury or illness of the employee’s spouse, the employee may be required to take time off to take on the necessary feeding, bathing, nurturing, and transportation needs of the disabled spouse until the spouse is healthy enough to return to his or her routine. Under such circumstances, the employee has certain rights and protections from being terminated for taking the leave of absence. However, some employers fail to recognize such rights and terminate the employee for job abandonment or some other reason, even though the employee has provided all needed documentation regarding his or her spouse’s disability and care requirements. Sometimes the employer will claim that the employee is being terminated for a specified reason, such as a performance issue, but often the timing of the termination makes it seem apparent that the real reason behind the termination is the taking of leave of absence to care for the spouse.
Leave For The Care Of A Father: In situations where an employee has a father who becomes ill, disabled or injured and is temporarily unable to take care of his basic needs, and no one else is available to take up the responsibility, it often falls upon the employee to take a leave of absence from work to provide the needed care and assistance. The employee’s father may not be able to take care of his own hygiene needs or prepare meals. The father may need rides to frequent medical appointments, or in the event of a medical emergency must have someone readily available who can provide transportation to the hospital. Furthermore, the father may recover more quickly because he is under the care of a beloved family member.
Yet an employer may be less sympathetic to an employee’s need for a leave of absence to take care of a father, since the father is an adult who the employer may think should in most situations be able to arrange for his own care. For instance, if an employee provides the necessary medical documents showing that the father has a serious medical condition requiring constant attention, the employer might suggest that the disabled parent or adult simply hire someone to assist him rather than taking a leave of absence to provide the care.
The employer may not be concerned that this sort of arrangement might not be financially feasible fir the employee. So when the employee puts in for a leave of absence to take care of a father, Human Resources may accept the request, but a manager may later decide that the employee should not be given the leave and have the employee terminated for job abandonment or something vague like “performance,” or the elimination of the position.
However, employees in this position are protected by the rights that protect employees from termination due to taking time off for their own serious medical condition, or for the care of a child. If you feel your rights to a leave of absence from work to take care of a father are being or have been violated by your employer, or if you feel you have been terminated after taking time off for this reason, contact our office the Los Angeles Employee Lawyers.
Leave For The Care Of A Mother: An employee’s mother may also become unable to care for herself for a period of time due to an illness or disability, and the only family member available to take care of her may well be the employee. A mother who is living alone and advanced in age may be in a transitional period between when she is fully able to take care of herself in her own home and when she will need to seek the care available in an assisted living facility.
During that middle period, the employee may be needed to intervene in the event of a medical emergency if the mother becomes ill or suffers an injury and needs to be cared for on a temporary or periodic basis. For example, in the event she is homebound or bedridden for a time, the employee may need a leave of absence from her employer to take care of her nutritional, bathing and other personal health needs, as well as to ensure that she receives whatever scheduled medications she requires during the recovery period.
Alternately, if the employee’s mother is injured or becomes ill, but not so much that she needs constant monitoring and care, the employee may request intermittent leave to be available to provide the mother with periodic yet vital assistance similar to that which might be provided by a nurse or nurse’s aide, such as monitoring her weight, hygiene, vital signs, and living conditions such as cleanliness of her home. The employee might ask to leave work early from time to time to be able to transport the parent to a doctor or physical therapist, and provide documentation from the doctor regarding the need for the parent to adhere to that schedule.
The employer’s manager may not want to make such accommodations, however. Many employers set up work schedules to meet the company’s staffing needs precisely. So when an employee submits paperwork requesting leave to take care of his or her mother, the company’s reaction might be to find a reason and a way to terminate the employee rather than make the necessary schedule adjustments or take the time to have a conversation with the employee about the requested accommodations. Instead, management may increase the employee’s work load and become increasingly critical of the employee’s performance. The management may inform the employee that he or she has been terminated due to poor performance, or because the employee appears “unhappy” in the position, or because it just wasn’t “working out.” The employer may not be more specific, but the employee might have a very good idea about just what is meant, especially given the timing. If you have been involved in the care of your mother and your employer is or was similarly unwilling to make accommodations, contact the Los Angeles Employee Lawyers.Contact Us
If you have not been granted an FMLA/CFRA leave, or have experienced negative treatment or termination from having taken a leave from your workplace to take care of a family member, contact the respected family leave lawyers at Kokozian Law Firm, APC. 323-857-5900. Ask about our free initial consultation.