What Do I Do Now?
First Steps for Caregivers Under the Family and Medical Leave Act
Guest Author: Mary E. Wright, Esq., Wright & Supple LLP
My friend Deb Krier asked me to write about things I wish I’d known before my husband was diagnosed with cancer and I asked for time off from work to care for him. Hands down, my first question was “what do all the freaking numbers really mean?” While I ultimately reached peace with my understanding of the numbers, I’m a lawyer, not a doctor so I won’t be giving out medical advice or strategy.
What I think might be of much greater help (and certainly more reliable) is, how can I translate 20+ years’ of employment law experience into practical steps for caregivers and their Warriors when they have to interact with their employer on things like medical leave (including leave for caregivers), wage continuation (like PTO and sick days) or state-run wage replacement plans (like state-disability insurance or legislation such as California’s Paid Family Leave Act).
Having held the caregiver position myself (and after freaking out), my first thought was how am I going to take all this time off to care for my Warrior and still keep my job? Can I work at least part time? Do I have any source of income? I will try to answer each of these questions over the next few months but first I want to summarize (very briefly and incompletely) the FMLA provisions that apply to the first question:
Can I get time off from work to be a caregiver?
Yes. Under the Family and Medical Leave Act (FMLA), eligible employees are entitled to unpaid, job-protected leave to provide care for a family member, including, twelve workweeks of leave in a 12-month period to care for the employee’s spouse, child, or parent who has a serious health condition.
Of course, your employer must be “covered,” as well (50+ employees). If you find you are not covered under the FMLA because your employer is not eligible, check your state laws. There may be a leave plan applicable to you that has a lower threshold for employer coverage.
Am I an eligible employee?
To determine whether you are an “eligible employee” look at this great chart from the US Department of Labor:
Note: The Chart applies to caregiver eligibility for FMLA leave. Your state’s leave law may have different eligibility criteria. Nonetheless, all of the questions provided in this article are equally applicable to seeking caregiver leave under state law.
Is my Warrior also my spouse, child, or parent?
For purposes of FMLA leave, spouse means a husband or wife as defined or recognized in the state where the individual was married and includes individuals in a common law or same-sex marriage. Spouse also includes a husband or wife in a marriage that was validly entered into outside of the United States, if the marriage could have been entered into in at least one state.
If eligible, how do I exercise the right to a leave? What do I say? What info should I have?
Notice and Request
Call HR or your supervisor and set a face to face (or video) meeting. The FMLA requires 30 days’ notice if possible for a requested leave but “reasonable notice” is acceptable if the leave is due to an unplanned or emergency need. Once you have had this meeting, put your notice in writing. Document that you provided notice and requested time off. Be sure to include important things HR or your supervisor said, and to officially request whatever form your physician is required to complete (the “Certificate of Healthcare Provider” or “COHP”).
Information
Provide information sufficient for the employer to determine that you are seeking leave for a “qualifying reason,” in this case to care for a family member with a serious medical condition. Under federal law, you may be compelled to identify the Warrior’s diagnosis. If your Warrior has more than one serious medical condition, you need only discuss the one for which you are seeking leave. For instance, a Warrior with depression and cancer, where care is needed only in relation to the cancer treatment, you need only provide information concerning your need for time off to provide care for that medical condition. Please note that the FMLA allows the employer to seek the diagnosis but many state laws (including California) do not permit such an inquiry.
I speak from experience to advise you that not every employer, HR manager or supervisor has empathy or compassion, and may (unfortunately and illegally) use the information against you in some way. Disclose to your employer only that which is absolutely required by statute.
Ask your healthcare provider questions about their understanding of FMLA rules. For instance, the COHP should not state that the need for leave is indefinite because doing so could be grounds for your separation because an employer need only grant reasonable leave that will result in a return to work. The COHP is a highly significant document. It contains evidence that will be used for or against you should you sue the employer for violation of your FMLA rights. Talk to a lawyer simultaneous to seeking a COHP to make sure it is both accurate and precise and doesn’t include unnecessary or legally restrictive language.
Pay
Review your company handbook or policy manual for references to paid time off. Ask your employer if any part of the leave is paid by the employer (either by salary continuation, or through use of accrued PTO or sick leave). Under the FMLA, the employer may require you to use PTO and sick leave before taking unpaid leave. If so, ask that the PTO and sick leave be used to supplement state disability or private disability benefits.
Insurance
Your employer cannot cancel your health insurance while on approved leave unless you fail to make your usual and typical premium payments and only after notice (unless the policy is canceled for everyone). Read up on what your policy covers now to ensure no change is made while you are on leave. Things get crazy so ask for a payment schedule, address of payee, and contact information for the carrier to make sure all payments are made and received. I suggest that you make payment coupons and pre-address envelopes (they likely won’t do auto pay) and make one other person your payment-minder to bug you on the date it is due. (In the unrelated but related category – this is also true for any installment payment of the Warrior’s mortgage, life insurance and long-term care premiums.)
Do I have any alternatives other than a leave of absence?
Yes. If caregiving does not require full-time attention, you can seek part-time FMLA leave. Also, if company rules and/or job responsibilities permit, you may be able to continue part time or even full-time work while caregiving at home. Read your handbook for remote work policies, policies on borrowing or advancing PTO or sick days, and even policies that provide an opportunity for colleagues to donate their paid time off to you.
In Conclusion…
Mary Wright and her partner, Oriet Cohen Supple, provide advice and counsel to both employers and employees, assist employees in transitioning jobs, and negotiate everything from disability accommodation to severance pay. The firm also conducts or oversees neutral workplace investigation of discrimination, harassment and retaliation claims. Mary is licensed by the bar in California. Click here to reach her via email.
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