What Does ‘Need for Care’ Mean Under FMLA Regulations?

 

 

As an HR Knowledge Advisor in SHRM’s HR Knowledge Center, I receive a lot of questions about the Family and Medical Leave Act (FMLA). Every situation is unique, and many can be complex. Administering FMLA leave can make even the most seasoned HR professionals want to pull their hair out. While some questions about the FMLA are straightforward, this one seems to stump many HR professionals: Can an employer deny FMLA leave if an employee is not directly caring for a parent, spouse or child with a serious health condition?

Consider the following situation, which I myself faced previously as an HR professional: “Susan” requested a meeting to discuss her need to take a leave of absence and to find out more about the FMLA. When I met with Susan, I could tell she was physically and emotionally exhausted. During our conversation, I learned her mom was receiving cancer treatment in a hospice facility and had 24/7 nursing care. Susan also shared that her mom had several complications from the cancer treatment and was unconscious.

My first thought was how awful for Susan! I couldn’t imagine what she must have been going through. Then, my analytical side kicked in and I started wondering about the “need for care” requirement under the FMLA. Susan’s situation was awful, but my mind went straight to the facts of the situation: Susan’s mom was in hospice, was unconscious and had round-the-clock nursing care. Could Susan really take FMLA leave? Although I was unsure if Susan would qualify for FMLA leave, I still provided her the FMLA paperwork and let her know I would follow up with her once I received the medical certification form back from her mom’s health care provider.

After Susan left my office, I started researching the FMLA. Susan’s mom seemed to be well taken care of, and the specific circumstances did not appear to meet the “need for care” requirement under the FMLA. But I really wanted to find a way for Susan to be with her mom, even if the FMLA didn’t apply. Further research revealed that my initial assumption was incorrect. As it turned out, Susan did qualify for FMLA leave. Thankfully, I had taken the time to investigate before responding to Susan.

A common assumption on the part of many HR professionals is that if an employee’s family member is receiving care from professionals in a hospital, hospice or other care facility, the employer can deny the employee’s FMLA leave request. This is simply not the case. FMLA regulations define the “need for care” qualification as including both physical and psychological care. Employees do not need to be actively involved in medical treatment to qualify for FMLA leave. Providing psychological comfort and reassurance to a family member is reason enough.

Before approving or denying an FMLA leave request, HR professionals should pay close attention to the advice provided by the health care professional on the medical certification form. Providing psychological comfort is listed on the form as one of the options of how an employee is caring for the family member. If you really don’t think the FMLA applies to a particular situation, always seek the advice of legal counsel before denying FMLA leave.

The FMLA regulations are lengthy! If you’ve ever had the pleasure of reading them in their entirety, I hope you didn’t fall asleep. Also, the regulations are written in legalese (legal jargon), so don’t feel bad if they still are unclear to you. SHRM has excellent resources about the FMLA, and our team is always willing and able to help you with your toughest FMLA questions.

SHRM’s Ask an Advisor service is a member benefit through which SHRM's HR Knowledge Advisors share guidance, real-life personal and professional experiences, and resources to assist members with their HR-related inquiries. We receive questions from HR professionals on a wide range of topics, including the FLSA, COVID-19 and the FMLA.

If you want to know more about the FMLA or have other HR questions, we’d love to help! Give us a call or send an e-mail. We’re also available by chat. The HR Knowledge Center is one of the best benefits of SHRM membership!

 

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