FMLA - Employer's Responsibility???

System · May 2004

We have an employee who has just given her resignation. She is terminating because her daughter is suicidal. Her daughter is an adult (19). She has a chemical imbalance and has had a deep depression for many years. She tried to commit suicide in the past years and tried again last weekend. Our employee and her husband made the decision to take her out of the hospital and bring her home to take care of her around the clock (she's on suicide watch).

I know that this qualifies under FMLA because it is a serious mental health condition. I also know that a parent can take FMLA to care for an adult child with a serious health condition.

This employee has given her notice and I don't think she realizes that this qualifies under FMLA (especially because it is an adult child). We have FMLA posted in our break rooms and our employee handbook (but it does not refer to "adult child," only "child"). Does the employer have a responsibility to let the employee know their rights even if the rights have been posted accordingly?

Please don't get me wrong. We are a caring employer and want to do what is right. This is a devasting situation. I'm just not sure if we are obligated, under the law, to notify the employee if we have posted the law as required.

Any input would be greatly appreciated.

Thank you!
Rita

Itemeyes · May 2004

Rita

I read your concern about the employee terminating to care for her adult child. Whether or not FMLA includes adult children, does your employer feel any sense of compassion to this employee, and if so, can they just allow her a short leave of absence to start and take it from there? It seems to me that your employer should not be looking at the protection of the FMLA law but instead into his/her own conscience and just allow the employee to take a 30 day leave, let her use her vac/sick time and then follow up with her to see if terminating her employment is really the thing to do. Is that an option?

Roseann
ItemEyes Inc
Hauppauge NY

System · May 2004

Hi there,

Thank you so much for your response. In this case, leave of absense is not an option. The department's concern is the absence of the employee, thus causing hardship. My concern is that I feel confident that this employee did not know that the law pertained to an adult child (only minors) and because of her ignorance of the law, did not take the option of FMLA. In our postings, FMLA only states "child" which I believe most think that pertains to a minor, dependent child.

Thank you!
Rita

SDDCHR · May 2004

You need to put her on FMLA...unless she unequivocally states that she is not going to be coming back. If that is the case then go ahead and accept her resignation.

LindaS · May 2004

You have an obligation to notify the employee of their FMLA rights. Simply putting up the notice is not adequate. You have been made aware of a potential FMLA situation and you are responsible to inform the employee of their rights. There have been court cases in the past regarding this issue and the employee has won.

Meet with the employee and let them know that this may qualify as FMLA. If they are interested have them complete the paperwork and go from there.

System · May 2004

Rita, did she ever ask for leave to take care of her daughter? Even something as vague as "I wish I could just take some time off." Since you know about the FMLA condition, any request or statement like that would be a request for FMLA leave, even if she never mentioned FMLA. Then you'd have two days to grant the leave, even if it's a hardship (unless she's a highly compensated employee).

I talked to Anne Williams, the attorney who wrote our FMLA Special Report, and she suggested that you err on the side of caution when you're in a grey area like this.

James Sokolowski
HRhero.com

Don D · May 2004

[font size="1" color="#FF0000"]LAST EDITED ON 05-05-04 AT 06:55PM (CST)[/font][br][br]The two days that James references are the two days an employer has in which to provide an answer to a properly submitted request for FMLA, not a vague notice of needing to be off or a situation which you're not sure how to approach yet. You don't have a two-day time limit in the situation you cite.

If you have the required notice posted and have it covered in any handbook you issue then legally the employer has met the posting/notification obligation. And if, as James suggested, the employee said anything at all related to a need to be off work in this instance, you are obligated to discuss FMLA. I would certainly discuss FMLA with her right away and let her know that you feel it would be qualified. A need to care for an adult child who is "incapable of self care" is certainly qualifying.

Rockie · May 2004

I tend to agree with Linda. If you know of the situation, that's your notice that the individual may qualify for FMLA. I'd advise them of this fact and let them make the decision for either FMLA or resignation.

marc · May 2004

It would not even be a question in our shop. We would advise this EE that the FMLA covers her for this kind of absence and to not make a hasty decision regarding resignation. Can you even imagine what she is going through?

This is a time for the company to step up and do what is RIGHT even if it is a bit inconvenient for a few days or weeks.

FMLA - Employer's Responsibility???

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