Let’s go back to Why . . . Needed to care for a family member or covered servicemember.

After our little aside last time, we are still talking about why an eligible employee can take a leave under the FMLA.  So let’s go back:

(a) Circumstances qualifying for leave. Employers covered by FMLA are required to grant leave to eligible employees:

(1) For birth of a son or daughter, and to care for the newborn child (see §825.120);

(2) For placement with the employee of a son or daughter for adoption or foster care (see §825.121);

(3) To care for the employee’s spouse, son, daughter, or parent with a serious health condition (see §§825.113 and 825.122);

(4) Because of a serious health condition that makes the employee unable to perform the functions of the employee’s job (see §§825.113 and 825.123);

(5) Because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty (or has been notified of an impending call or order to covered active duty status (see §§825.122 and 825.126); and

(6) To care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember. See §§825.122 and 825.127.

29 CFR §825.112(a).

This time we need to take a look at what it means to be “needed to care for a family member or covered servicemember.  So in (3) and (6) above an eligible employee can take time off under the FMLA if the employee needs “to care” for a “spouse, son, daughter, or parent” with a serious health condition or if you the employee needs “to care for a ‘covered servicemember’ with a serious health condition” and the employee is a “spouse, son, daughter, parent or next of kin” of the covered servicemember.  So what is “needed to care for?”

It’s pretty straight forward and it basically means what it says.  The employee is needed to provide actual physical care for a covered person who can’t physically care for themselves, which includes, by the way, taking a covered person to the doctor or providing psychological care like being there for comfort and reassurance even if somebody else, like a nurse, is providing the actual care.

(a) The medical certification provision that an employee is needed to care for a family member or covered servicemember encompasses both physical and psychological care. It includes situations where, for example, because of a serious health condition, the family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor. The term also includes providing psychological comfort and reassurance which would be beneficial to a child, spouse or parent with a serious health condition who is receiving inpatient or home care.

29 CFR §825.124(a).

It also applies to situations where someone else is the normal caregiver but they can’t be available.  Like they need a vacation.

(b) The term also includes situations where the employee may be needed to substitute for others who normally care for the family member or covered servicemember, or to make arrangements for changes in care, such as transfer to a nursing home. The employee need not be the only individual or family member available to care for the family member or covered servicemember.

29 CFR §825.124(b).

And finally, the leave for this kind of leave can be intermittent in that the care is only needed intermittently because the covered person is only incapacitated intermittently, like say for chemotherapy treatments, or where the employee in only needed intermittently, like where a sister takes care of mom Monday through Thursday and the employee gets Fridays.

(c) An employee’s intermittent leave or a reduced leave schedule necessary to care for a family member or covered servicemember includes not only a situation where the condition of the family member or covered servicemember itself is intermittent, but also where the employee is only needed intermittently—such as where other care is normally available, or care responsibilities are shared with another member of the family or a third party. See §§825.202- 825.205 for rules governing the use of intermittent or reduced schedule leave.

29 CFR §825.124(c).