Time Off to Care for Healthy Child Not Covered Under Family Leave Act

Leporiere_DavidMy company has more than 50 employees, and one of the employees, who is Family Medical Leave Act (FMLA)/California Family Rights Act (CFRA) eligible, is asking for time off to look after his 4-year-old child because the employee’s wife is unable to look after the child due to her serious health condition. Would this qualify as a leave of absence under FMLA/CFRA?

Simply put, no. The general rules related to qualifying reasons for leave under these acts are listed in the Code of Federal Regulations (CFR).

Leave Qualifications

Title 29, Section 825.112 states the following:

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;

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

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

(4) Because of a serious health condition that makes the employee unable to perform the functions of the employee’s job….

Time Off Not Covered

In your scenario, your employee is asking to stay home to care for a child who does not have a serious health condition (defined at 29 CFR Section 825.113 as “an illness, injury, impairment or physical or mental condition that involves inpatient care… or continuing treatment by a health care provider”).

Although the employee’s wife may have a serious health condition, your employee has stated that he is staying home only to watch over his child, and not to care for his wife. Consequently, he is not asking to take time off to care for the person with a serious health condition, and would therefore not be entitled to a leave of absence covered by FMLA/CFRA.

The Labor Law Helpline is a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.

Staff Contact: David Leporiere