Here is a quiz about some of the quirkier aspects of the Family and Medical Leave Act.
How much do you know about these FMLA oddities? Unless otherwise indicated, you can assume that all of our hypothetical employers are covered by the FMLA and that all of the employees are eligible for leave. As always, the answers appear at the end of each question, and you are allowed to take the quiz as many times as necessary to ace it. I’ll never tell!
No. 1: Which of the following situations is NOT a qualifying reason for FMLA leave?
A. Prenatal checkup that lasts five minutes.
B. Cosmetic nose job that requires one night at the hospital.
C. Chemotherapy for employee’s grandmother, who has Stage Four pancreatic cancer.
D. Two-week “R&R” trip to Barbados with employee’s husband, who is serving in the military.
E. Ear infection that is treated with prescription antibiotics, allowing employee to return to work in 24 hours.
ANSWER: C. Chemotherapy for pancreatic cancer would obviously be an FMLA “serious health condition,” except that grandparents are not usually included among the covered family members for whom an employee can take leave. (Of course, employers should try their best to accommodate employees with very sick relatives who aren’t technically covered by the FMLA.) All of the other reasons, believe it or not, are FMLA-qualifying.
No. 2: Employee Junie has bronchitis. She visits her chiropractor, Dr. Tom, who says she needs 10 days of bed rest. He also tells her to return for a follow-up visit on Day 10. Junie then tells you she needs FMLA leave for the days that she will be out of work. Do you grant it, or do you deny it?
A. Grant it. One type of “serious health condition” leave involves a period of incapacity of more than three calendar days, plus two visits to a health care provider. Junie’s illness meets this standard.
B. Deny it. A chiropractor treating bronchitis is not a “health care provider” within the meaning of the FMLA.
ANSWER: B. Under the FMLA regulations, a chiropractor is a “health care provider” only if performing “manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist.”
3. The biological parents of employee Arnold divorced when Arnold was a preschooler. For the first few years after the divorce, Arnold was reared by his Aunt Amy. Then Arnold moved back in with his mother, Ann, after she married Allie, who never adopted Arnold but was like a second mother to him. Arnold’s biological father, Deadbeat, refused to pay child support or have any contact with Arnold while Arnold was growing up.
By a stroke of bad luck, Aunt Amy, Ann, Allie, and Deadbeat all come down with serious health conditions. Arnold asks for FMLA leave to care for them. Assuming Arnold doesn’t exhaust his 12-week allotment, which “parents” may he take FMLA leave to care for?
A. Ann and Deadbeat, his biological parents, only.
B. Aunt Amy, Ann, and Allie, because they took care of Arnold and supported him, but not that bum Deadbeat.
C. Ann only. Deadbeat is a bum, and Allie is not a “parent” because she is a same-sex spouse.
D. Everybody: Aunt Amy, Ann, Allie, and Deadbeat.
ANSWER: D. Aunt Amy qualifies because she acted “in loco parentis” to Arnold during his part of his childhood. Ann and Deadbeat qualify because they are Arnold’s biological parents. Allie qualifies because she also acted in loco parentis to Arnold.
P.S. Anyone in a valid same-sex marriage has the same rights under the FMLA as anyone in a valid opposite-sex marriage. And you don’t have to be married to anyone to qualify as a “parent” under the FMLA.
4. Because Deadbeat was such a deadbeat, Ann and Allie were always strapped for money. Ann’s reclusive millionaire brother Ansel supported Arnold during his entire childhood and paid for him to go to an exclusive boarding school and private university. Ansel lives in a villa in Tuscany, and has no contact with his family apart from sending money for Arnold.
Arnold learns that Ansel has been diagnosed with terminal cancer, and wants to go to Tuscany to care for Ansel in his last days. Assuming Arnold still has leave available and can get a medical certification saying that he is “needed to care for” Ansel, is he eligible for FMLA leave?
A. Yes. Even though Ansel and Arnold never had a personal relationship, the fact that Ansel paid child support for Arnold throughout his life qualifies Ansel as Arnold’s “parent” for FMLA purposes.
B. No. It’s not enough for Ansel to provide financial support to Arnold. If Ansel isn’t a biological, adopted, or foster parent, then he must have an in loco parentis relationship to Arnold for the FMLA to apply.
ANSWER: A. According to guidance issued by the U.S. Department of Labor during the Obama Administration, which has not been rescinded, the child support alone is enough for Ansel to be acting in loco parentis to Arnold for FMLA purposes. Therefore, Ansel is also Arnold’s “parent,” and Arnold is entitled to FMLA leave to care for Ansel.
5. Dawn, your CFO, needs intermittent FMLA leave for her irritable bowel syndrome. How do you pay her for the weeks in which she takes time off?
A. You must pay Dawn for a full workweek, with no deductions. Anything else would be partial day docking, which would cause her to lose her exemption from the overtime provisions of the Fair Labor Standards Act.
B. You can dock Dawn for all of her time off, even if it’s a partial day, because unpaid FMLA leave doesn’t cause an employee to lose her exempt status.
C. You can dock Dawn for all of her time off that strictly qualifies as FMLA leave without causing her to lose her exempt status, but if you dock her for anything more than that — or if you dock her when she is not actually eligible for FMLA leave for some reason — then those partial-day deductions will cause her to lose her exempt status.
ANSWER: C. Don’t ever dock an FLSA-exempt employee for more than the actual, bona fide,legally qualifying FMLA time off, or you will lose the exemption.
6. FMLA leave is not normally available for bereavement and funerals, with one exception. What is it?
A. Death of an employee’s mother or father.
B. Death of an employee’s child, provided that the child is younger than age 18 when he or she dies.
C. Death of an employee’s immediate family member (parent, child, sibling, or spouse).
D. Funeral and other observances related to the death of the employee’s spouse, son, daughter, or parent in connection with a military “qualifying exigency.”
E. None of the above.
ANSWER: D. No matter how much the employee grieves for his or her deceased immediate family members, FMLA leave is not available for funerals or bereavement unless a military qualifying exigency is involved.
No. 7: William’s brother, who is his next of kin, has post-traumatic stress disorder related to his participation in the bombings of Syria in 2017. William needs 20 weeks of FMLA leave to care for his brother. In addition, William is the father of a new baby and wants 12 weeks off to bond with the baby. How do you calculate the amount of FMLA leave to which William is entitled?
A. Give William 12 weeks of leave during the FMLA “leave year” for baby bonding. Employees are not allowed to take FMLA leave for their siblings, so William gets nothing for his brother’s PTSD.
B. Call your employment counsel and work through it together.
C. Give William his 20 weeks of “military caregiver” leave but don’t allow him to take 12 weeks for his baby because by then his 12 weeks will have been exhausted.
D. Give William all 32 weeks of leave that he has requested.
ANSWER: B. FMLA-eligible employees are allowed 26 weeks in “a single 12-month period” for military caregiver leave, and that leave year begins when the military caregiver leave begins. Meanwhile, an employee is eligible for 12 weeks of “regular” FMLA leave during a 12-month period used by the employer as its leave year. The employee cannot take more than 26 weeks of military caregiver leave in a single 12-month period, and the employee can never take more than 12 weeks of “regular” FMLA leave during the employer’s leave year. In other words, when an employee needs both military caregiver leave and regular FMLA leave, calculating the leave available can be ridiculously complicated, so it’s best to go through it carefully on a case-by-case basis with your employment counsel. (Military caregiver FMLA situations are relatively rare, so hopefully you will never have this problem except when taking an FMLA quiz.)
P.S. – Employees are eligible for military caregiver leave to care for siblings, and even individuals who are not immediate family members, if they are the “next of kin” to the employee.
8. Tamara is a customer service representative for Flyover Corporation, based in Aurora, Illinois. There are 51 employees at the Aurora headquarters. Tamara works out of her home in Fargo, North Dakota, which is about 650 miles from Aurora. The nearest employee to Tamara is another telecommuting CSR in Duluth, Minnesota, about 243 miles from Fargo. Tamara requests FMLA leave for a serious health condition. How do you respond?
A. Tell Tamara that she is provisionally eligible for FMLA leave, and mail her the paperwork.
B. Tell Tamara that she is not eligible for FMLA leave because her condition is not that serious.
C. Tell Tamara that she is not eligible for FMLA leave because there are fewer than 50 employees within a 75-mile radius of her worksite (i.e., her home in Fargo).
D. Tell Tamara that she cannot take FMLA leave because losing her for 12 weeks would be an undue hardship for the company.
ANSWER: A. Assuming Tamara has a serious health condition, she would be eligible for FMLA leave as long as she gets her work assignments from and reports to someone in the Aurora headquarters. If so, she is considered an employee of the Aurora office for FMLA purposes. Because the Aurora office has more than 51 employees in a 75-mile radius of the worksite, Tamara is eligible.
7-8 correct: Fantastic! You are a “key employee”!
5-6 correct: Very good! You are “FMLA-eligible”!
3-4 correct: OK, but your performance seems “intermittent.”
0-2 correct: You must be having a period of incapacity of more than three calendar days. Make two visits to a health care provider and try again next week.
Just kidding — you all did great! Have a wonderful weekend.
Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.