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FMLA & Coronavirus: Who Can I Miss Work To Care For?

On Behalf of | Mar 25, 2020 | Employment Discrimination, Family Medical Leave Act Claims, Wrongful Termination |

FMLA & Coronavirus: Who Can I Miss Work To Care For?

Ohio Employment Discrimination Attorney
Answer: Can I take
time off work to care for my grandparents during the Coronavirus pandemic? Am I
allowed to miss work to care for my nieces and nephews if my sister has tested
positive for Coronavirus? How do I take unpaid medical leave? Is my employer
allowed to fire me for taking FMLA leave?

In the face
of a global pandemic and the rapid spread of COVID-19 or the Coronavirus, the
world of employment needs to be prepared to make some changes. This isn’t just
in reference to every companies’ policies regarding health and wellness, as
discussed in one of our latest lawyer blogs (See: See our constantly updated Coronavirus
Blog Home Page
), but it is also in reference to the adjustments that will
be necessary to adapt the Family
and Medical Leave Act

As our employment
lawyers previously blogged about, the FMLA allows up to 12 workweeks of
leave during any 12-month period for employees who have been at their place of
employment for 12 or more months and 1,250 or more hours during that time. For
more about your rights and the necessary qualifications to take unpaid medical
leave, check out some of the top Ohio employment
law attorneys
’ advice in our previous blogs (See: What Hours Count Towards My FMLA Eligibility? Best FMLA
Attorney Reply!
; Can I Be Fired For Asking About FMLA?; and Do I Qualify For FMLA Leave?). The
qualifications are simple enough, but the scope of the FMLA, or who it covers,
is a little more complicated.

FMLA entitles employees who
work for qualified FMLA employers to take unpaid medical leave to care for
either a personal serious health condition, or the serious health condition of
a close family member. The term “close family member” in the context of FMLA
coverage is important to define. Who is considered a “close family member”? Well,
Section 102(a)(1) lists
the reasons that an employee may take leave:

“Entitlement to leave – Subject to section 103, an eligible
employee shall be entitled to a total of 12 workweeks of leave during any
12-month period for one or more of the following: (A) Because of the birth of a
son or daughter of the employee in order to care for such son or daughter. (B)
Because of the placement of a son or daughter with the employee for adoption or
foster care. (C) In order to care for the spouse, or a son, daughter, or
parent, of the employee, if such spouse, son, daughter, or parent has a serious
health condition. (D) Because of a serious health condition that makes the employee
unable to perform the functions of the position of such employee. (E) Because
of any qualifying exigency (as the Secretary shall, by regulation, determine)
arising out of the fact that the spouse, or a son, daughter, or parent of the
employee is on covered active duty (or has been notified of an impending call
or order to covered active duty) in the Armed Forces.”

FMLA & Coronavirus: Who Can I Miss Work To Care For?

The FMLA language itself is clear
in its description of who an employee can take leave to care for. For the most
part, an employee will only be allowed to take leave (after qualifying, of
course) to care for either themselves personally, a spouse, a son, a daughter,
or a parent. Not only is the act rather explicit about this, but Ohio courts
have also interpreted the act to be limited to these categories of family

The United States District
Court for the Northern District of Ohio, Eastern Division
discussed this matter specifically in the case of O’Hara v. GBS
2013 U.S. Dist. (N.D. Ohio Mar. 13, 2013)
. In O’Hara,
an employee filed for FMLA leave and was subsequently fired upon return from
that leave, and she then filed a lawsuit against her employer. The employer was
a qualified employer under the FMLA, and the employee met the qualifications to
take protected medical leave. There was a problem, however, that the court
pointed out when they decided to grant the employer’s motion to dismiss (a
motion that eliminates a plaintiff’s claim and ends the lawsuit because the
plaintiff’s claim does not meet the required elements of a given cause of
action) that the plaintiff was not taking time off to care for a family member
that is listed in the language of the FMLA. The plaintiff in O’Hara took
unpaid medical leave to care for her brother who had a severe illness due to complications
with his pancreas and since the FMLA provides that leave can only be taken to
care for a spouse, a son, a daughter, or a parent with a serious medical
condition, the plaintiff was not protected by the FMLA. The court reasoned:

courts have concluded that an employee is not entitled to FMLA coverage to care
for family members who are not specifically mentioned in the FMLA…Based upon
these cases and the FMLA statute itself, the undersigned recommends that the
Court find that Plaintiff has not and cannot plead a cognizable cause of action
under the FMLA because she was not legally entitled to FMLA benefits in order
to care for her brother, a family member not specified in the statute.” – O’Hara v. GBS

So, as it stands in the courts,
the FMLA will only cover the specific family members as listed in the act
itself. However, it is possible for a niece or nephew to be considered your
“children” under the FMLA if you are acting “in loco parentis.” In loco
parentis is a fancy Latin phrase that translates literally to “in the place of
a parent.” This phrase applies to individuals who take on all responsibilities
of a parent when caring for a child without a biological or legal relationship
to the child including but not limited to financial support, housing, and
providing food. So, if you are acting as a parent to your sibling’s children,
you may be entitled to take FMLA leave to care for them if they become
seriously ill or some other serious medical condition arises.

For example, if your sibling
becomes ill with the Coronavirus you could be considered the parent in an “in
loco parentis” sense if your sibling is unable to care for their children, and
you take their place as the primary caregiver. In loco parentis in this example
still leaves a gap regarding FMLA coverage, however. The FMLA allows unpaid
leave to care for a son or a daughter who has a serious medical condition, but
in this hypothetical scenario, the children are not the individuals with the
serious medical condition. Therefore, if courts follow the stricter view of the
FMLA, which they often do, an employee seeking to care for a sick sibling’s
children likely won’t be legally covered by the FMLA.

Although courts are relatively
strict with how they interpret the FMLA, the state of global panic created by
the Coronavirus calls for employers who are FMLA covered to be more flexible
when allowing FMLA leave. It is, after all, up to the employer what they allow
to be qualified under the FMLA, so long as they don’t deny the care of any
family members or employees that are explicitly listed in the act. In other
words, the FMLA acts as the bare minimum of requirements for FMLA leave, and
employers are likely to adjust their allowance for leave in this time of global
crisis. For more general information regarding FMLA coverage, see what the top
Ohio employment
have to say. (See: Employment Law: Am I Entitled To Paid Sick Leave?;
Can I Sue My Boss For Interfering With My FMLA Leave? I
Need A Lawyer!
; and My Employer Demoted Me Because I Took FMLA Leave!).

If you feel that you’ve been
retaliated against or denied your rights in response to COVID-19, the employment
discrimination attorneys at Spitz, The Employee’s Law Firm would
like to hear from you. Even if you are not sure about your claim, you
should call the right
 as quickly as possible to schedule a free and

FMLA & Coronavirus: Who Can I Miss Work To Care For?


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