Beginning Next Week: InsideCounsel will become part of Corporate Counsel. Bringing these two industry-leading websites together will now give you comprehensive coverage of the full spectrum of issues affecting today's General Counsel at companies of all sizes. You will continue to receive expert analysis on key issues including corporate litigation, labor developments, tech initiatives and intellectual property, as well as Women, Influence & Power in Law (WIPL) professional development content. Plus we'll be serving all ALM legal publications from one interconnected platform, powered by, giving you easy access to additional relevant content from other InsideCounsel sister publications.

To prevent a disruption in service, you will be automatically redirected to the new site next week. Thank you for being a valued InsideCounsel reader!


Labor: 3 FMLA traps for employers that don’t dig below the surface

Knowing what follow-up questions to ask is essential to ensure compliance

In the human resources arena, attorneys often advise employers not to ask too many questions. For example, if an employer believes an employee’s performance problems are due to a physical or mental condition, but the employee has not raised such condition as an issue, attorneys generally will advise the employer to avoid discussing the employee’s condition and instead simply focus on the performance problems themselves because of the risk of creating a claim under the Americans with Disabilities Act (ADA).

However, there are times when an employer is well served to dig a little deeper. Discussed below are three potential Family and Medical Leave Act (FMLA) traps that could ensnare employers that do not ask the right questions.

1. The aunt who raised me

Consider a male employee who has worked a full-time schedule for his large company for several years. One day, the employee tells his supervisor that his elderly aunt, who lives in another state, had a serious fall and will require surgery and live-in care for several weeks. The employee requests a leave of absence.

The supervisor consults the human resources director, who in turn consults her well-worn copy of the FMLA regulations. She reviews 29 C.F.R. § 825.112, which provides that leave is available to care for an eligible employee’s spouse, son, daughter or parent. She advises the employee that, because aunts are not covered family members, he is not entitled to leave under the FMLA and his request for a leave of absence is denied.

The human resources director should have continued reading. 29 C.F.R. § 825.122 provides that a “parent” includes “any . . . individual who stood in loco parentis to the employee” (i.e., any person who had day-to-day responsibility to care for and financially support the employee when he or she was a child). So, if the male employee’s aunt was responsible for his care and financial support when he was a child, she qualifies as his “parent” under the FMLA, and his request for leave should not have been summarily denied.

2. A spouse or not a spouse: It depends on where you live

A female employee with the same company (again, a longtime, full-time employee) tells her supervisor that her live-in partner has just been diagnosed with an aggressive form of cancer, and she needs time off to take him to weekly medical treatment and to provide certain care to him after such treatment. Remembering the definitions in 29 C.F.R. §825.112, the human resources director advises the employee that, although she is sympathetic to the employee’s situation, the employee is not entitled to FMLA leave because only spouses are covered by the FMLA, not partners who live together.

Perhaps the human resources director should have continued reading again. 29 C.F.R. § 825.122 provides that a spouse is “a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.” Depending upon where the employee and her partner live, and the history of their relationship, it is possible they would be deemed married under the laws of that state.

3. The age of dependents (or dependence)

Like many members of the “sandwich generation,” several of this same company’s employees have adult children who live with them. One such employee tells the human resources director that her 25-year-old daughter, who lives with her, is unmarried, pregnant and having severe complications that currently have her on bed rest. The employee, who has been a model full-time employee for the company for 10 years, requests a leave of absence to take care of her daughter.    

The human resources director remembers reading that only children under the age of 18 are typically covered family members under the FMLA. However, learning her lesson from the first two scenarios, the Human Resources Director reads 29 C.F.R. §825.122 and discovers that the FMLA defines a “son or daughter” to include children who are age 18 or older but “incapable of self-care because of a mental or physical disability [as defined by the ADA] at the time that FMLA leave is to commence.”

Although “temporary” conditions typically do not qualify as disabilities under the ADA, the human resources director remembers hearing at a seminar that under the ADA Amendments Act, which applies to cases arising on and after Jan. 1, 2009, it can be argued that conditions lasting less than six months can be deemed “disabilities” if they are sufficiently severe. Thus, the human resources director provides FMLA paperwork to the employee to begin the certification process—and considers a change to a less stressful career.

The lesson illustrated by the three examples above is simple: When it comes to the FMLA, knowing what follow-up questions to ask is essential to ensure compliance.    

Contributing Author

author image

Craig Oliver

Craig Oliver is a partner with Bradley Arant Boult Cummings LLP (Nashville, Tenn.) and serves as vice-chair of the firm’s Labor and Employment Practice. His...

Bio and more articles

Join the Conversation

Advertisement. Closing in 15 seconds.