FMLA Abuse?

THe wife of an employee in one of our locations will have surgery later this month. He wants to be with her on the day of her surgery (only). He has no leave time available. He is agreeable to taking the time unpaid, but he still wants the Earned Day award that they get for perfect attendance in one quarter.

He knows that someone who has been on FMLA is still eligible for the Earned Day award, so he wants to apply for FMLA for that one day. I think the "more than three days out," etc. only applies to the employee's own serious medical condition.

The wife does have a serious medical condition and I'm sure the doctor will attest to it.

I hope I am missing something, but I can't think of a valid reason to deny the leave. It seems ridiculous to go through the motions and I think this will open a can of worms. Any thoughts or suggestions would be gratefully received.


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  • When you say that the employee has no leave time available, I assume that you mean he has no leave time under your company's paid leave policies. So the question is purely whether he is entitled to take FMLA leave for his wife's surgery.

    First, a serious health condition is defined the same regardless of whether the employee is requesting leave for his own health condition or that of a family member. Since you say that his wife does have a serious health condition, then he is entitled to the leave if he meets the basic eligibility requirements (of having worked for you at least 12 months, working 1250 hours within the past 12 months, and working at a worksite that has at least 50 employees). The fact that he is requesting only one day of leave is irrelevant. The only issue is whether the wife has a serious health condition.

    As for the Earned Day award, the FMLA regulations issued in 2008 state that employers are not required to grant such awards to employees who miss work solely because of FMLA leave. Therefore, under the current regs, you are not required to give him the award if he takes the leave. However, if your policy states otherwise, I recommend contacting your attorney on how to proceed.

    Julie Athey
    Author- FMLA Compliance: Practical Solutions for HR
    Editor - FMLA Compliance Bulletin
    Author - HR Q&A: Family and Medical Leave Act
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