FMLA and Taking Leave to Care for Qaulified Family Member

I have to question, somewhat, the position stated in the Nebraska Employment Law Letter that's posted on the HR-Hero "HR Q and A" site.

Basically, the position states that FMLA probably would not be availabel to the family member who took time off to care for the persons that the qualified, seriously-ill family member cares for. For example, the husband seeks FMLA to care for his toddler-son at home because his wife is seriously ill and unable to care for the child. The article indicates that FMLA doesn't cover that purpose. As far as I can see, it is probable that situation will be covered under FMLA.

Remember, one of the reasons for the father being able to take leave would be to provide for the psychological comfort to the seriously ill wife. It seems to me that a seriously-ill parent, especially a mother, would be pychologically relieved to know that the toddler is being properly cared for.

Consider this: DOL's FMLA certification form clearly inquires of the seriously ill family-member's treating practitioner "would the employee's presence to provide psychological comfort be beneficial to the patient or assist in the patient's recovery?" Thus the issue is whether or not the presence of the father in caring for the toddler at home where the mother is seriously-ill would be provide psychological comfort that is beneficial to the mother or "assist" in her recovery. I think that once the doctor certified to that, there isn't any basis that an employer is going to be able to argue against it.

As I recall my "psychological comfort" considerations, if the employee's "psychological comfort" includes taking the seriously-ill child out to Disneyland once a week, then caring for a child, thus relieving the mother's concern, has to be at least equivalent in value.

Clearly, a couple of things have to happen for the FMLA coverage to occur -- the ill spouse needs to be seriously ill at home, assuming the toddler is going to be cared for at home. This is because the question relates to the presence of the employee with the seriously-ill spouse. And two, the doctor will need to certify to the benefit occurring. Even if there is a nurse to care fo the wife, the husband can still be there for the psycholgoical comfort, which includes caring for the toddler.

Any thoughts?


  • 2 Comments sorted by Votes Date Added
  • Hatchetman, that's really a thought-provoking question. I hope that most employers would try to help an employee in this situation. But I have to side with the Cornhuskers -- I don't think FMLA would cover it, but I think I see a loophole. Here's the regulation:

    "29 CFR §825.116 What does it mean that an employee is "needed to care for" a family member?

    (a) The medical certification provision that an employee is "needed to care for" a family member encompasses both physical and psychological care. It includes situations where, for example, because of a serious health condition, the family member is unable to care for [b]his or her own[/b] basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor, etc. The term also includes 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."

    It's a bit hard to decipher xflash but the regulation seems to require the husband to comfort the wife directly. BUT ... having said all that, I think a clever employee (or a helpful HR professional) can get around it.

    If the wife is sick enough for FMLA, she probably can convince her doctor to certify that she needs her husband's comfort and care. And while the husband is home caring for his wife -- Whaddaya know! -- he can take care of the rugrat at the same time. But this could get tricky if she's in a hospital.

    James Sokolowski
    Senior Editor
    M. Lee Smith Publishers
  • James is correct. I've never seen a doctor that will not write a spouse out for comfort if their spouse is seriously ill. Employers should not be monitoring if the spouse is at the hospital or at home. Talk about getting a retaliation charge!

    Margaret Morford
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