can I ask my HR FMLA for my mom resides full time in nursing home?

Hi there, currently my 90 years old mom is phasing the last stage of her life. she's full time residence in the nursing home. I'm not moving her residence nor her benefits. I just want to be with her as often as can to support morally and comforts daily by visiting nursing home everyday. can I be eligible for FMLA (without pay-not getting involved with state/EDD)?

1 answer  |  asked Nov 3, 2016 10:42 AM [EST]  |  applies to California

Answers (1)

Marilynn Mika Spencer
Perhaps. It depends on her medical status. An employee may be protected under the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA) if all of the following is true: (a) your employer has at least 50 employees who work within 75 miles of one another; and (b) you have worked for this employer for at least one year all together, even if not consecutively; (c) you have worked for this employer at least 1,250 hours in the immediately preceding year; and (d) you have, or an immediate family member (spouse, child or parent) has, a serious medical condition as defined by the FMLA.

Very generally, a serious medical condition is more than a cold or scraped knee; it will require professional medical attention and will last for several days or more.

The FMLA is a federal law that provides up to 12 weeks of unpaid leave to employees who have a serious medical condition or who have responsibilities for an immediate family member with a serious medical condition. The time can be taken all at once or in increments of one day or even one hour. When the employee returns from leave, the employer must put the employee back into the same position held before the leave, or a substantially equivalent position that has equal or similar pay, equal or similar duties, equal or similar working conditions, etc.

If you are protected by the FMLA, then your employer can request medical documentation but is not entitled to know the diagnosis or treatment plan. The employer can insist on knowing the start and end dates of the need for leave.

If you take advantage or request leave under the FMLA, your employer is prohibited from discriminating against you. It cannot take adverse action because you needed FMLA-qualifying leave. For example, your employer cannot demand that an employee who takes FMLA leave provide medical information that employees who take any other kind of medical leave do not have to provide. Also, your employer cannot limit you in terms of job advancement, training, pay, work product, etc.

Please look at my guide to the FMLA for a better understanding of these rights: http://www.thespencerlawfirm.com/tslf-fmla.php.

More specifically, If your mother is in the last phase of her life, it is likely her medical status can be described in terms that meet the definition necessary to qualify for FMLA. Speak with her doctor to discuss this and explain your interest in taking FMLA and confirm whether the doctor can describe your mother's medical status in terms of a "serious health condition." Your mother most likely has an underlying medical condition, such as heart disease, that has put her close to death.

All that said, most nursing homes are open in the evenings and you may be able to arrange your visits for non-work hours to avoid using up your FMLA allotment. Many people choose to preserve their FMLA as much as possible because one never knows what the future brings.

Finally, I applaud your interest in spending as much time with your mother as possible. She is fortunate to have a loving, compassionate child like you.

posted by Marilynn Mika Spencer  |  Nov 3, 2016 12:50 PM [EST]

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