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FMLA or not?

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LauraWI10

Junior Member
What is the name of your state (only U.S. law)? WI

A fellow employee is currently going through a tricky situation. He was cleared by CPS to be the only adult legally able to care for his grandchildren during an alleged abuse investigation. He's already missed a week of work and has no idea when the investigation will be over.

HR is saying this is not an FMLA issue due to it being his grandchildren and not a medical issue so his absences are not protected.

However, on the DOL website I found this section: " The Wage and Hour Division issued an Administrator Interpretation clarifying the definition of "son and daughter" under the Family and Medical Leave Act to ensure that an employee who assumes the role of caring for a child receives parental rights to family leave regardless of the legal or biological relationship. FMLA AI 2010-3, Press Release (June 22, 2010) "

So now the main question is about it not being a "serious health condition"... legally with the CPS paperwork, he is the ONLY person who can watch the children, he cannot entrust them to a babysitter. Would this not fall somewhere under the "Family" section of FMLA??? Does anyone have any idea?
 


Zigner

Senior Member, Non-Attorney
FMLA is designed to assist in MEDICAL situations. Not having a babysitter isn't protected.
 

mlane58

Senior Member
Sorry but unless there is a serious health condition that one of his grandchildren has, it isn't an FMLA issue. Why can't he entrust them, with a babysitter or daycare?
 

LauraWI10

Junior Member
Well the youngest (6 months old) is currently still in the hospital with broken ribs and a fractured skull. The 2 year old is the one he currently has daily custody of until the little one is released from the hospital and/or the investigation is concluded.

The current focus of the investigation is on the babysitters. My co-worker has been cleared by CPS as being the only adult who, within the past 2 months, has not spent any time alone with the children therefore has been cleared as a suspect. The childrens parents are not suspected, but for the remainder of the investigation are not allowed to be alone with the children.
 

Zigner

Senior Member, Non-Attorney
Well the youngest (6 months old) is currently still in the hospital with broken ribs and a fractured skull. The 2 year old is the one he currently has daily custody of until the little one is released from the hospital and/or the investigation is concluded.

The current focus of the investigation is on the babysitters. My co-worker has been cleared by CPS as being the only adult who, within the past 2 months, has not spent any time alone with the children therefore has been cleared as a suspect. The childrens parents are not suspected, but for the remainder of the investigation are not allowed to be alone with the children.
Then your coworker can find a previously unused daycare provider. Preferably not just an in-home provider.

As for the 6 month old, it does not appear that your coworker has any direct responsibility at the present time that would allow him/her to claim FMLA.

This is a sad situation :(
 

mlane58

Senior Member
Then your coworker can find a previously unused daycare provider. Preferably not just an in-home provider.

As for the 6 month old, it does not appear that your coworker has any direct responsibility at the present time that would allow him/her to claim FMLA.

This is a sad situation :(
And what direct responsibility would that need to be Zigner?
 

Zigner

Senior Member, Non-Attorney
And what direct responsibility would that need to be Zigner?
From the OP:

"...an employee who assumes the role of caring for a child receives parental rights to family leave regardless of the legal or biological relationship."


At this point, the grandparent is not caring for the 6 month old child. (At least, that's how the OP presented it IMO)
 

mlane58

Senior Member
From the OP:

"...an employee who assumes the role of caring for a child receives parental rights to family leave regardless of the legal or biological relationship."


At this point, the grandparent is not caring for the 6 month old child. (At least, that's how the OP presented it IMO)
So if I qualify for FMLA and my wife is in intensive care and I am not directly caring for her I can't use FMLA?
 

ecmst12

Senior Member
It appears FMLA would apply for that IF you were in the hospital with your wife. It does NOT appear that this grandparent is spending all day in the hospital with the baby, it appears they are spending the time caring for the uninjured 2 year old.
 

LauraWI10

Junior Member
This whole situation has me sick to my stomach for the whole family, so I'm just trying to do what little I can by trying to take some of the tedious research off his hands.

When the baby is released from the hospital, if the CPS investigation is still underway leaving my co-worker as the primary caretaker, would that be enough to have him resubmit for FMLA, considering at that point he would be "needed to care for a family member (child) with a serious health condition"?
 

mlane58

Senior Member
It appears FMLA would apply for that IF you were in the hospital with your wife. It does NOT appear that this grandparent is spending all day in the hospital with the baby, it appears they are spending the time caring for the uninjured 2 year old.
I know FMLA very well and have dealt with it since it came into existence in 93. The OP's post never said anything about this child being in the custody of CPS Zigner. It was a question for Zigner and for your information the grandparent being cleared to be the primary parent from CPS as per the OP's post doesn't have to provide care for this qualify as an FMLA event. Being given care as an inpatient is a qualifying event.
 

Zigner

Senior Member, Non-Attorney
I know FMLA very well and have dealt with it since it came into existence in 93. The OP's post never said anything about this child being in the custody of CPS Zigner. It was a question for Zigner and for your information the grandparent being cleared to be the primary parent from CPS as per the OP's post doesn't have to provide care for this qualify as an FMLA event. Being given care as an inpatient is a qualifying event.
Well the youngest (6 months old) is currently still in the hospital with broken ribs and a fractured skull. The 2 year old is the one he currently has daily custody of until the little one is released from the hospital and/or the investigation is concluded.
Per the OP, grandparent is NOT providing care to the 6 mo old. Grandparent does NOT have "custody" or any sort of obligation to the 6 mo old at this point.
 

mlane58

Senior Member
Per the OP, grandparent is NOT providing care to the 6 mo old. Grandparent does NOT have "custody" or any sort of obligation to the 6 mo old at this point.
And where did the OP say he wasn't caring for the grandchild? The grandparent does not have to have court order custody.

According to Secretary of Labor Hilda L. Solis. "No one who steps in to parent a child when that child's biological parents are absent or incapacitated should be denied leave by an employer because he or she is not the legal guardian. No one who intends to raise a child should be denied the opportunity to be present when that child is born simply because the state or an employer fails to recognize his or her relationship with the biological parent.

Also under FMLA, caring for a family member includes providing psychological comfort and reassurance which would be beneficial to a child, spouse or parent with a serious health condition.
 

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