Human Resource Blog

Intermittent FMLA

We have an employee who is on FMLA because his wife has a serious medical condition. The employee will call in an hour before shift start that his wife needs him at home or he will leave mid shift after a call from his spouse. The physician certificate is very non-specific as to why he needs to leave work at midnight to attend to his wife. When I read the FMLA policy, my understanding is it must be medically necessary in nature for the employee to be able to leave or be absent.

Can the employee go/stay home to watch the children because his wife is not feeling well enough to watch them?

The answer to your question is no — an employee cannot take FMLA to provide childcare because his spouse is too ill to mind the children. (Hopefully, the kids are in bed by midnight, anyway.)

However, there is a fine line here and you need to be careful with this issue. You are incorrect about there needing to be a medical emergency for the employee to take time off under FMLA. In many cases, the employee can take off to provide routine physical care, transportation or psychological support for a spouse. For example, the employee could take time off to be with a spouse during a radiation treatment for cancer. But the employee could also take time off to be with the spouse in the days after radiation treatment, to provide physical care or psychological support.

Under the 2009 FMLA regulations, the employee needs to follow your usual reporting procedures for an absence whenever possible. If you normally require that an employee call in two hours before the start of a shift, then this employee must follow that same procedure. However, if his spouse has a sudden urgent need in the middle of the shift, the usual reporting procedures do not apply.

You should sit down with the employee and address the childcare issue by letting him know that FMLA does not cover childcare and that he needs to make other childcare arrangements for times when his wife cannot care for the children.

Even if the spouse has an ongoing or lifetime condition, you can require re-certification of the condition every 6 months. You can and should request specific information from the doctor on the duration and frequency of expected absences. We recommend that you use the FMLA certification form:  http://www.laborlawcenter.com/p-75-health-care-provider-certification-for-fmla-leave.aspx .  You can also affix a calendar showing the employees absences to the form, and have the doctor sign off that this pattern of absence is consistent with the treatment plan, or not.

Bear in mind that FMLA is a federal law and the guidelines are federal regulations — not company policy. There have been significant changes to FMLA regulations in the past 18 months, most of them increasing benefits to employees. It sounds like you are referring to an outdated company FMLA policy. For your protection and to limit the companys liability, review the FMLA regulations at  http://www.dol.gov/whd/fmla/index.htm 

By the way, we assume that the wife is not an active or former member of the military injured on active duty. If she is, different rules apply.