Posts Tagged ‘FMLA leave’

Organ/Marrow Donation: FMLA Eligible?

Tuesday, March 28th, 2017

I recently had a member call to inquire as to whether their employee’s leave to donate bone marrow would qualify as covered FMLA leave. In this particular instance, the bone marrow donation was not directed at a specific family member (rather just a donation to a bank for qualified donors/recipients) and the donation wouldn’t require an overnight stay at a medical facility. When it comes to marrow/organ donation how does the FMLA view the leave?

First, you have to remove the emotional aspect from the decision.  Donating marrow is clearly an exceptional act, however, you want to focus on whether it meets the qualifications necessary to be considered a serious health condition. Let’s review the six categories that a condition must fall in to meet a serious health condition as defined by the FMLA:

  • Inpatient care
  • Incapacity for more than three days with continuing treatment by a health care provider
  • Incapacity relating to pregnancy or prenatal care
  • Chronic serious health conditions
  • Permanent or long-term incapacity                                                                                       
  • Certain conditions requiring multiple treatments

So if we take bone marrow donation as an example, we can assume it would not meet the qualifications at face value since the employee will not be receiving inpatient or ongoing care.  In essence, they will go for the transplant donation procedure and then may have some recovery time but can expect to go on with their normal activities. Organ donation may meet the qualifications based on the fact that the individual will probably have an inpatient care several day stay and potential follow-up treatments.

As with any procedure, if the individual develops complications from the transfusion or donation and needs to have additional care, the original donation might not have met the qualification at the time of the request but the complications may now qualify. An example would be an infection or surgical complication.

There are several states that have organ/marrow donation leave laws.  North Carolina does not have an organ/marrow donation leave law for private employers.  State employees may be given reasonable time off with pay for whole blood donation, pheresis procedures and bone marrow transplants.  State employees may be given up to 30 days with pay for organ donation.

Bottom Line: As with any FMLA request, employers should review all of the request details and have a conversation with their employees to understand the circumstances regarding the request. Take the request and compare it to the items necessary to qualify for a serious illness under FMLA regulation. If it doesn’t meet the qualifications you can deny the request, but be prepared to offer another solution to the employee, for example, if the company offers personal leave or sick time that might help cover the leave. It’s important to have an open communication with the employee to help find the best solution for the business and your employee.

Complying with state and federal laws that affect your workplace is not always straight forward. That’s where CAI’s HR experts come in. Find out more about how CAI can help you in building an engaged, well-manged and low-risk workplace.

Emily’s primary area of focus is providing expert advice and support in the areas of employee relations and federal and state employment law compliance as a member of the Advice & Resolution team for CAI. Additionally, Emily advises business and HR leaders in operational and strategic human resources areas such as talent and performance management, employee engagement, and M&A’s. Emily has 10+ years of broad-based HR business partnering experience centering around employee relations, compliance & regulatory employment issues, strategic and tactical human resources, and strong process improvement skills.

 

Organ Donor Image Credit: Catherine Lane, 2015

FMLA – Needed to Care For a Family Member

Tuesday, January 10th, 2017

The FMLA allows leave for an eligible employee when the employee is needed to care for certain qualifying family members (child, spouse or parent) with a serious health condition. (The definition of son or daughter includes individuals for whom the employee stood for or is standing “in loco parentis.” The definition of parent includes individuals who stood for “in loco parentis” to the employee. The term “in loco parentis”, Latin for “in the place of a parent”, refers to the legal responsibility of a person or organization to take on some of the functions and responsibilities of a parent.  Under FMLA, it specifically references a relationship whereby an individual takes on the role of “parent” to a child who is under the age of 18, or an adult (18 years of age or older) who is incapable of taking care of themselves due to a mental or physical disability.  No legal or biological relationship is necessary, provided the individual can satisfy the “in loco parentis” requirements under FMLA. 

An employee must be needed to provide care for his or her spouse, son, daughter, or parent because of the family member’s serious health condition in order for the employee to take FMLA leave. “Needed to care for” encompasses both physical and psychological care. It includes, for example:

    • Providing care for a qualifying family member who, because of a serious health condition, is unable to care for his or her own basic medical, hygienic, nutritional or safety needs, or is unable to transport himself or herself to the doctor, etc.;
    • Providing psychological comfort and reassurance that would be beneficial to a child, spouse or parent with a serious health condition who is receiving inpatient or home care; or
    • Filling in for others who normally care for the family member or to make arrangements for changes in care (transfer to a nursing home, for example).

The employee need not be the only individual or family member available to care for the qualifying family member. The need to care for could result in an employee’s need for intermittent leave or a reduced leave schedule to care for a family member where either the condition of the family member itself is intermittent or the employee is only needed intermittently (ie., other care is normally available or the care responsibilities are shared with others, family or third party).

For questions or issues regarding FMLA and how it pertains to employees within your company, CAI’s Advice & Resolution team, can help. Learn more about becoming a CAI member here.

 

CAI’s Advice & Resolution Advisor Renee Watkins is a seasoned HR professional with a diverse background in Human Resource. Renee provides CAI members with practical advice in a wide range of human resource functions including conflict resolution, compliance and regulatory issues, and employee relations.