Employee may take FMLA leave for child to avoid daycare

Employees may take FMLA leave to care for a family member such as a child for whom they have custody, even if that child's doctor recommends avoiding daycare. One employer learned this the hard way.

Case in point

Jamie worked in health care at a hospital. In 2017, she gained custody of her grandson, who had a serious congenital heart defect. After the start of the Covid pandemic, his doctor recommended that he avoid any gatherings outside the home, including daycare, due to his medical condition. Jamie requested FMLA leave through April 15, but received instead an unprotected leave of absence.

When she requested an extension of her leave through April 30, Jamie was told that she needed to return to work. She told her employer that, due to day care closures and her grandson's need to avoid day care, she would not be able to return.

At that point Jamie was told that her position would be posted, but that she could move to PRN status, which would allow her to work some shifts if the hospital needed shifts covered but did not guarantee full-time employment. While she agreed to move to PRN status rather than resign, Jamie never worked any shifts. Months later, she was formally terminated.

Employee files suit

Jamie sued, arguing that her termination violated of the FMLA.

The employer argued that Jamie's son did not have a serious health condition, and that Jamie was not entitled to FMLA leave because fear of contracting Covid was not a qualifying reason for FMLA leave.

The court pointed out that the FMLA defines "incapacity" to mean "inability to work, attend school or perform other regular daily activities due to the serious health condition.

The grandson's cardiologist submitted a note stating that, due to his heart condition, he should avoid potential exposure to Covid, including by avoiding daycare. An inability to attend daycare based on a doctor's recommendation is analogous to being unable to work or attend school.

The court denied the employer's request to avoid a trial by jury.

Leave to avoid incapacity

The FMLA regulations include an example of an employee taking FMLA to avoid becoming incapacitated:

"For example, an employee with asthma may be unable to report for work due to the onset of an asthma attack or because the employee's health care provider has advised the employee to stay home when the pollen count exceeds a certain level."
While the grandson's condition in this case might not have changed, a change in the environment around him might well have left him incapacitated under the definition of the regulation.

Dunn v. Select Specialty Hospital—Cincinnati, Inc., Southern District of Ohio, No. 1:21-cv-454, March 1, 2023.

Key to Remember: Employees may take FMLA leave to avoid a period of incapacity, whether for their own condition or that of a family member.