The FMLA and Paid Time Off Programs

Issue:
It’s 8:00 a.m. A frantic employee calls in requesting an unscheduled day off under the company’s paid time off (PTO) program. The manager refuses the unscheduled leave because of pressing work deadlines that need to be met for a critical product to ship. The employee does not relent, arguing he needs the time to admit his grandfather to the hospital. How should the manager respond?

Answer:
The manager needs to ask for more information. There is a potential Family and Medical Leave Act (FMLA) violation if the manager does not allow the employee to take PTO. FMLA leave must be granted for purposes of caring for a parent who has a serious health condition. While the grandfather is not at first glance a “parent,” the law also says that FMLA applies to someone who acted “in the place of a parent” to an employee.

Parent for FMLA leave means a biological parent or an individual who stands or stood in loco parentis (in the place of a parent) to an employee when the employee was either under age 18, or age 18 or older and “incapable of self-care because of a mental or physical disability.”

What should you do?
Ask during new employee orientation whether employees have a “parental relationship” with anyone other than a biological or adoptive parent. In many cases a grandparent may have filled that parental role by assuming day-to-day parental duties and responsibilities, which is why many companies ask during orientation if employees have someone in their family (an aunt, uncle, godmother) who filled that role. However, the law is clear that parent does not include parents “in-law.”

FMLA also requires the employee to provide as much notice as possible before taking leave, but if the grandfather has taken a sudden turn for the worse, the employee may be providing all the notice he can.

Train first-line supervisors on their FMLA responsibilities.
In the event the grandfather did act as a parent to the employee and paid time off is granted, the employee must be notified within two days that the time off will be designated as FMLA leave. In most cases immediate supervisors, who have the power to grant or deny time off, are the only ones who know if FMLA leave of less than five days is being taken. Consequently, they are the only members of management in a position to give the FMLA-required two-day notice or alert the HR department that notice must be provided.

Cite: U.S. Department of Labor, Wage and Hour Division, Family and Medical Leave Act final regulations; 29 CFR 825.113(b) and (c).

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