FMLA For Childcare?

Don D · November 2003

[font size="1" color="#FF0000"]LAST EDITED ON 11-19-03 AT 07:51AM (CST)[/font][br][br]Here's one I'll have to decide in the next several days. Hypothetical employee has history of tardies, having to run home throughout the day, missing days due to family illnesses. When I was hired here I noticed in his file that he had been on approved FMLA for a 'condition' his wife has that supposedly renders her incapable of caring for two very small children. The paperwork indicated 'this condition will last until she has a hysterectomy'. So, two years passes and he indicates he'll be filling out papers again tomorrow. He also now has an 8 month old in addition to the other two younger than 4. What triggered this, I think, was that yesterday he was told that he will not be excused from work for 7 days to babysit while his wife has what he says is 'the flu'. We don't have a sick leave policy but very generously ignore exempt occasions of such absence up to 3 or 4 times per year. What's up with this? I know the paperwork will indicate he is needed to care for her due to her serious medical condition. he indicates this is not flue related but is a resurrection of the situation from two years back with the mystery illness anticipating a hysterectomy. However, it's my plan to challenge him on that. I'll ask if he is needed to care for her or is he staying at home to babysit. I think the latter would not qualify. Your thoughts?

Whatever · November 2003

Sorry, can't resist but if she had the hysterectomy two years ago, there wouldn't be an 8 month old at home now. You need to update the paperwork. However, if she is not going to have the hysterectomy now, then when? Why the delay? (I have a feeling the last two questions are probably illegal). You state he has an attendance problem due to family illness and that his wife is home. Sounds like he may be trying to hide post-partum depression or the fact that his wife is overwhelmed with having to deal with so many young children. In any case, every family illness is not covered by FMLA. Caring for children is not covered. However, this may be one of those cases where you know the truth but still have to give the FMLA. But other than caring for his wife, he can probably still be disciplined for attendance.

Don D · November 2003

Dixie Lee: You'll notice that while reaching out for advice, I completely deferred to the women on the Forum for menstrual advice. I only repeated what the employee had implied to me and what my wife (a woman) had to say about the subject. I'm probably the most employee friendly person on this Forum and you'll soon learn that. Sorry if I offended you. I assure you that I am interested in a fair and legal application of FMLA, as with all other things HR. You might also notice that all of the comments impugning the integrity of the woman and employee for capitalizing on her situation (menstrual) came from females, not from males or from me. I made the toilet seat comment because of a recent thread in which women were criticising us for not lowering it. A woman also made the hysterectomy comment. I did follow up with a tongue in cheek comment about birth control, which by the way was accurate. Join in and have fun. I'm a big boy. x:-)

irenesmsaclaims · November 2003

First he asks if he can take off to babysit because his wife has the flu. Then he asks for FMLA to take care of her serious illness from two years ago, after they say no. I've seen such "stretches" of FMLA on this forum that would frighten the original framers. Did you see the one about the mother and daughter who didn't like driving in winter? Obviously this guy will either back down or lie to you. To qualify under FMLA, he would have to be taking care of his seriously ill wife.

Don D · November 2003

[font size="1" color="#FF0000"]LAST EDITED ON 11-06-03 AT 04:55PM (CST)[/font][p]Exactly my thoughts on the post partum depression. But, I dared not go there for fear Hatchetman would tell me I had 'regarded her as being disabled'. I can't get into a discussion with him about why she didn't have the procedure or if and when she does plan to. A better conversation for me to have with him would be one about the birds and the bees. I do, though, anticipate that her physician will state on the forms that HE, the ee, is needed at home during her illness, intermittently to care for (someone). This would mirror the language on the last set of forms. I think I agree that unless he is caring for her and she is unable to care for herself, then there's no approval.

(edit) Just for my information, and knowing nothing about this subject, would a hysterectomy have a positive effect on a person's depression in a case like this, assuming depression exists? My medical training fails me.

sonny · November 2003

I don't have any medical training but I think it definitely could from a physical/chemical standpoint...it would also (obviously) prohibit her from getting pregnant again ..and if the babies are causing the depression. .There are some facts missing here so I should keep my mouth shut, but have a bad gut on this one. .wife has some serious mental health issues. .and he may need to be there for more than her "moments" (mentioned in your post below) I just keep thinking of the woman who drown her kids. .(and my first patient when I worked in the State hospital who had killed her kids) too nice a day to go dark here. Let us know what happens.

rad · November 2003

Well, I am not a medical expert but I do have a uterus so I'm kind of qualified to answer. Hormones put out with menstruation can cause the mood swings most of us know as PMS. There is a more serious form of this but I can't remember what its called. Something like PMDD??? Its treated with anti-depressants. Some women also suffer from menstrual migraines and a hysterectomy is a sure cure although most doctors are reluctant to remove a woman's uterus for this reason alone. So yes, it is possible that she has some issues that can be cured by a hysterectomy but she sure didn't have one and also have a new baby unless it was incubated in a pod.

marc · November 2003

Could he not qualify for FML to bond with the 8 month old? It is my understanding the parent can do so during the first 12 months of the child's life.

That being said, I respect your instincts, and regardless of the outcome, you very likely have this ees intentions nailed to the wall, which still may not get you the outcome you desire.

Keep us posted!

Don D · November 2003

>Could he not qualify for FML to bond with the 8 month old? It is my
>understanding the parent can do so during the first 12 months of the
>child's life.
>
Probably....but I'm not recommending it to him. I don't have the obligation.

mwild31 · November 2003

Hi Don - check out this link:

[url]http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/Subpart_A.htm[/url]

specifically, look at: 29 CFR 825.116 - What does it mean that an employee is ``needed to care for'' a family member?

and: 29 CFR 825.113 - What do ``spouse,'' ``parent,'' and ``son or daughter'' mean for purposes of an employee qualifying to take FMLA leave?

I'm thinking you are going to have to grant the leave & it would qualify - even if it is babysitting. I would count any time he is away from work & it concerns this matter, as FMLA time. If the spouse's paperwork comes back again and it's as all-inclusive as it was last time - perhaps you could try to challenge the treatment plan a bit. The form I use, Certification of Health Care Provider (from the US Department of Labor), asks the provider to state the likely duration and frequency of episodes of incapacity & the like. The doctor stating until a hysterectomy is performed is an event - not a date - I would ask for a date or some type of timeframe, i.e. the next 2 months, the next 6 months, etc. It may not get you too far - phrase the letter politely - but it may also signal to the doc. that you're on to him.

Don D · November 2003

M: I've read all that stuff, almost daily, for years. I don't see anything in the regs about 'caring for a family member' extending to the children who need to be cared for while the mother has a 'condition'. The children, in this instance, won't be ill. They're just young. Babysitting isn't covered under FMLA as far as I can determine. I'm thinking that if the paperwork indicates he is needed at home to care for 'HER' due to her serious medical condition, then I might be cornered. If he's needed at home to babysit because she is having 'moments', I don't see that as something we have to approve. If you see this in another light, please let me know.

Rockie · November 2003

Don: The only case I have ever heard of that might remotely apply to "babysitting" is the case of where a mother might be needed at the hospital to care for a hospitalized child. The father might be needed at home to care for small children while the mother is detained at the hospital.

I've not heard of a case like what you described being a covered event, but doctors being doctors, you can get them to approve just about anything.

I spent two days in the company of lawyers at an FMLA workshop two weeks ago and my head is still spinning from the abuse stories.

mwild31 · November 2003

[font size="1" color="#FF0000"]LAST EDITED ON 11-10-03 AT 01:38PM (CST)[/font][p]Sorry I wasn't clearer in my post Don D - I can't find anything either that states that baby-sitting is covered by the FMLA and I'm sorry for the confusion. Given the stat's in your post - I immediately went to strategy. Employee & spouse have been down this road before & scored a blanket doctor's note, spouse is an attorney (although not practicing), etc. I'm worried they will take the route you mentioned in your second post and corner you in under

"(a) The medical certification provision that an employee is ``needed
to care for'' a family member encompasses both physical and
psychological care."

and consequently you'll have to allow the FMLA. I would still put some pressure on the doc. for a time frame, rather than some far off (potentially) distant event to occur. Also, I would want to know from the doctor if the care of the spouse can be done on an intermittent basis throughout the day, rather than all week long as I would want to know how

"It includes situations where, for example, because
of a serious health condition, 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, etc."

often the family member needs help with taking their prescriptions (medical) whether or not the family member can take themselves to the restroom & showers, whether or not they can feed themselves or whether or not they need a ride to the doctor's office, etc. I want to make this clear - not diagnosis type of information (and the questions above could be reworded a bit) - just how the employee can assist the family member, IN keeping with the FMLA reg. stated above - I would probably send the letter in a check-off format. For example:

At the top of the form I would state the FMLA reg. & why I was looking for more information prior to granting the leave.

If applicable, can (family member) take their own medications? _____Yes _____NO
If applicable, does (family member) need assistance when taking their own medications?____Yes ____No
If applicable, does (family member) require assistance with personal hygiene?____Yes ____No
If applicable, can the (family member) prepare their own meals?____Yes ____No
If applicable, can the (family member) feed themselves?____Yes ___No

Again, my follow-up letter would be well-phrased and polite - but I wouldn't grant FMLA until the doc. responds to the follow-up letter. This is just me - I'm somewhat of a maverick - but if I was in your situation & the history was the same - I would probably push back a little for more information. Of course, once I do this for one - I would do it for all similar cases.

Don D · November 2003

I have just gotten the paperwork. The request form itself states, "Dates are not known since medical condition presents itself in an unpredictable manner". Type of leave, checks intermittent. Our language on the form states, "Please specify exact leave schedule requested, e.g., one week of leave beginning on such and such date followed by two weeks of work; three hours of leave on Monday and Tuesday afternoons from 2:00 to 5:00 p.m., etc". In that space, the applicant wrote, "Manimum of 3 days per month." On the certification, the only thing I have to deal with is, "Does the patient require assistance for basic medical or personal needs, etc?" YES. "Would the ee's presence to provide psychological comfort be beneficial?" NO. "Estimate the period of time in which the ee will be needed to care for the patient" AS NEEDED.

This is nothing but a free pass for three days off per month to babysit. I think I should indeed require more definitive laying out of the terms of intermittent. If I can trap the ee into being honest and saying he is needed to care for the children, I think I can deny it. I am determined to find a way to deny this if there is a legal way. If there is advice other than that offered above, please let it roll.

Whatever · November 2003

You have the right have the doctor answer the following question "If the condition is a chronic condition, state whether the patient is presently incapacitated and the likely duration of episodes of incapacity."
You can also ask the employee what care/services he will be providing for the sick person. Finally, if you can't deny, can he use up vacation days etc. And, of course, one should never forget the periodic updated reports.
Yes, I know this frustrating. It's probably happened to all of us. And remember, sometimes it pays to strictly adhere to the rules (especially the paperwork for others ones.)

Don D · November 2003

Update: I wrote him and required two things. First, that he state, as the form requires, what care he is to offer the ill family member and over what period of time. Second, that the doctor better define the period of expected illness and the frequency of the events and how long they may reasonably be expected to last.

The employee came in and wanted to explain. I told him I need it in writing. He went on to say that there will be times during the month, each month, when she will be totally exhausted and out of energy and he will be needed at home. I threw my curve ball and said, "And, during those times, are you saying that you will be there to care for the children?" He answered, yes. He said he could answer the question about how long this will last. He said until she is 50 years old, every month, for three days. I told him I need the doctor's response to that question, not his. I also reminded him that this is the same question we had 7 months ago based on his 2000 request, same wording, same symptoms, same energy loss three days every month.

I also used Forum advice and told him that 'as needed' is 'a frequency' not an estimate of a time line, as required on the form.

Ladies, you tell me if I'm off base here; but, isn't this just a menstrual cycle thing? I may need educating. I just can't see approving three days a month because the woman has cramps and is in a bitchy mood and he needs to be home with the kids. Hell, I'd think he'd want to be AT WORK.

Pixie · November 2003

[font size="1" color="#FF0000"]LAST EDITED ON 11-11-03 AT 09:12AM (CST)[/font][p]Don, I agree. Surely sounds to be a "menstrual thing". It's women like that that discredit all women. I'd like to know how they know that this condintion will last until she's 50. There is no magic age at which menapaus begins.

Whatever · November 2003

Yes, it's the woman thing. However, he doesn't say she gets cramps and is bitchy. He says she is exhausted and out of energy. I would be too if I had to care for three very young children. (as a cynical aside, was she tired and exhausted three days a month when she was working?). While, menopause differs from woman to woman, it is strange that the children will never be old enough to care for themselves. I know of no 16 year old who wants Dad to stay home and take care of them. Heck the 16 year old probably isn't home to be taken care.

Balloonman · November 2003

He answered that he is going to be babysitting, not caring for the wife. She does not need care just rest. Deny it, based on what he told you. They have this thing called day care providers ......mothers day out..... maybe she should look into that.
My $0.02 worth.
DJ The Balloonman

Don D · November 2003

Someone said there's this thing called daycare, Baloonman, I think. There's also this thing called birth control. It's not the employer's fault these two had this many midnight dalliances
in rapid succession. She has never worked in her life. She went straight from college to 'barefoot and pregnant, bam, bam, bam. She is 'tired and exhausted' because her husband works three blocks away and thinks his employer will give him three days a month to rub her feet. Pardon my cynicism, or rather don't pardon it. I think it's justified. This is going to be denied, I'm sure, since he will not be caring for a family member who cannot feed, clothe, bathe or drive herself. On the rare chance that once a month she is suddenly struck dumb and cannot move her limbs or lower the toilet seat, I may reconsider.

Dixie Lee · November 2003

The comment from "Don" is, in my opinion, unprofessional and uncalled for. In HR, we deal with personal issues, but it is not our place to evaluate how they got their problems or comment of male or female "hormones", etc.

If you feel the request is not legit or too personal for a leave, per your company policy, deny it.

Some of us in HR do have some compassion, even though we may not be allowed to show it.

marc · November 2003

[font size="1" color="#FF0000"]LAST EDITED ON 11-11-03 AT 02:32PM (CST)[/font][br][br]Hi Dixie,

Welcome to the forum.

If you carefully read Don's original post and the several follow-up comments about this situation, you will note a belief that this EE is abusing the FMLA. This HR professional has convinced me that he has excellent instincts and a superior skill set with respect to HR issues, that said, he has requested feedback from his fellow forumites to determine whether or not he is acting in a professional manner or is he off-target with respect to the monthly menstrual cycle that he believes is the real underlying problem, and if he is correct, then not a qualifying FML event.

Please do not misread compassion this man has for the people in his organization, his post is in fact a demonstration of that. He is checking his thinking on this forum instead of just denying the leave out of hand.

Rockie · November 2003

I think Don is mirroring the frustration that all of us are feeling of the the ludicriousness of some of the situations we encounter cause us.

Laws such as the FMLA were put in place to help the people it was supposed to help - those genuinely ill or caring for those who are ill and having to run the risk of losing their jobs because they needed time off. This law was not put in place for slackers to take time off whenever they felt like it under the guise of being "protected".

Compassion for your employees is great. I am all for it in circumstances of genuine need. But, too often, I have seen cases like Don has described. I have people on chemotherapy that have not missed a day of work - jeeze..menstrual cramps...give me a break!

HRQ · November 2003

You GO, Marc! I agree completely, and your description of why Don D may have brought up the topic fits why most of us seek advice here. Are we being reasonable? Are we letting our personal opinions get in the way?

While I tend not to push the limits beyond childrens Spongebob undies and my personal opinion of them, I truly appreciate that this is a place we can share our thoughts without fear of judgement. We may have to argue the reasoning behind our opinions when questioned, but I see nothing wrong with that.

I was not offended by the menstrual comment at all. Some women are severely affected by it, some are not at all affected by it, and there are those who use it as an excuse for their behavior. Sounds like this is what Don D was trying to figure out.

Balloonman · November 2003

Personally Spongebob rocks!!!! Not only does my son have some Spongebob boxers heck so do I. I do have to admit, his new ones are way cooler than mine.
My $0.02 worth.
DJ The Balloonman

rad · November 2003

Good point, HRQ. There are so many different variables and it is different for every woman. Knowing women who suffer terribly, I do not know of anyone who has actually had to have someone else to care for them, most just want to be left alone. The small baby, maybe, if it is menstrual migraines or severe anemia.
Thats my only concern. I worked with a woman whose migraines are so bad she is considering paying a doctor in Mexico to perform a hysterectomy for cash because a US doctor won't do it. And she did have her last child knowing that for 9 months she would be migraine free. It may sound crazy but when pain is that bad people will go to unbelievable lengths to relieve it.

Whatever · November 2003

[font size="1" color="#FF0000"]LAST EDITED ON 11-11-03 AT 03:14PM (CST)[/font][br][br]Good Grief, we're not only agreeing with Don but we're defending him. I think we all have moments of frustration. Certainly, we have all had to deal with people who would abuse any system if they could get away it. Furthermore, it is very hard to feel compassion (and I am a very compassionate person, otherwise I would not be in HR), for someone who is not only lying to me but who thinks I am stupid enough to fall the lie.

MOMANUFACTURER · November 2003

[font size="1" color="#FF0000"]LAST EDITED ON 11-11-03 AT 02:59PM (CST)[/font][br][br]Don: Can my husband come to work at your office. Being that I am currently 5 months pregnant I would love for him to come home and care for me 3 days a month and rub my feet. Oh I guess that I'll need to come to work there also.
I also feel that this is just a reason to get excused from work. Speaking as a woman I used to get migranes during that time of the month. Some days it would be so bad that daylight would almost bring tears to my eyes. I guess I'm incredibly stupid because I got myself to work every day. (OK there was the one day that I missed because I blacked out and was rushed to the er but hey 1 day in 10 years I don't think that is bad) Maybe I need to talk to your ee and find out how to make FML work more in my advantage.

(EDIT) I just want to add a note that I think it is wonderful that we have a place where we can vent our frustrations. We know that for the most part we can just put down what we are feeling. Personally I am grateful sometimes to have the forum for fear of what I might actually say to the ee if I hadn't had a chance to get some sane advice.
Thanks to ya'll

Balloonman · November 2003

Slacker! Did you spend all day at the hospital? Did they admit you? If not you could have gone into work once they were done with you.

It is this type of abuse..........oh wait........it is this type of dedication we need from employees. x:D Obviously we all have employees like this, ones we would love to bend the rules for and make exceptions for. Unfortunately because of the abusers we cannot. Hopefully all of you are bright enough to dectect my sarcasm at the beginning of the post. x:D

My $0.02 worth.
DJ The Balloonman

PS Big planning meeting tomorrow and I am wearing my Spongebob boxers!

MOMANUFACTURER · November 2003

Would have gone back to work after the hospital but I had to have my mother drive me there and she refused to take me back to work. Once I was home I had no vehicle to get back to work.
Now I think I really need to talk to Don's ee. I am way to serious about my job.

LisaMN · November 2003

I wondered why the Employment Law topic was so mild lately. All the action is over here.

I agree completely with your decision to deny the leave based on the idea he needs to be home to care for the children rather than care for his wife. I think he was stupid for not getting the 12 weeks leave for the birth of a child. His wife evidently isn't the lawyer he thinks she is.

BUT, I think you let your frustration with the ee spill over onto your posts in reference to his wife. You may have more personal knowledge of her character. All we know for a fact is that she has some sort of a medical condition associated with her cycle that has been diagnosed by a physician. The range of menstrual issues can include homicidal rages and suicidal depression. It's uncommon, but it does happen.

A complete hysterectomy (including ovaries)would have some effect on the depression. The ovaries are where the homones that theoretically cause these issues are made. If the hysterectomy simply removes the uterus there would be no effect on her mental/emotional condition. However it is a marvelous birth control method.

Sorry this so long, but I'm late to the discussion.

FMLA For Childcare?

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