CALL 503.248.1134

200 SW Market Street, Suite 1900
Portland, Oregon 97201

Family Leave – Responding To A Request For Time Off To Care For “Baby”

September 8, 2014

By Michael G. McClory

Anyone who thinks employees lack creativity ought to check with HR. Employees routinely present human resources professionals with oddly plausible requests. A letter in the (fictional) mailbag drives this point home. Gwen Looney, the Manager of HR at WEPAPER, writes about an unusual request that she received at the end of last week and asks The Bullard Edge about her intended response.

Gwen Looney’s Question:

As you probably know, WEPAPER is the best specialty paper provider in the region. We design and manufacture specialized paper at our plant. The paper is then sent to the Outlet, which is really headquarters (and is where I work as the Manager of HR). Paper at the Outlet is either delivered to customers or sold in our showroom.

We have a happy workplace at the Outlet. We really do. It is important that you understand that. I like to think of my job title as Manager of Happy Rejoicing. We have 63 employees and I think of them as family. I try to take care of them as best I can. Unfortunately, I received a leave request on Friday that made me think I am the manager of Heavy-handed Rejection.

Inventory specialist Joy told me by email that she needs three weeks off to care for Baby. She and her husband moved into a new condo a week ago, but her husband is out of town for a month taking a class (I think he is learning to be a glass blower). Apparently since the move Baby has not been sleeping or eating and is losing weight. Both the vet and Joy’s medium think Baby is at a crossroads. (Oh, yeah, Baby is her puppy.) Joy said that if Baby isn’t saved she (Joy) will have a mental breakdown; she said it has happened before. For that reason Joy requested FMLA/OFLA leave for her own anticipated serious health condition. (She joked that I could think of it as ‘sick Baby care’ if I wanted.) I am going to tell her that she can just forget it. I love animals (I have a Snowshoe kitten named Boots), but get real. Joy is just looking for time off to care for Baby. Do you agree? 

The Bullard Edge's Response:

There is a lot in that question, Gwen. Ultimately, it may be the case that you will deny Joy’s request. However, before you do that, The Bullard Edge wants to make sure you think about several different things.

First, as you seem to clearly know, neither the FMLA nor the OFLA entitles an employee to take time off to care for a pet. If Joy is simply looking for time off to care for Baby, she is barking up the wrong tree in seeking family leave. (Because Baby is a dog, not a person, Joy would not be entitled to take “sick child leave” under the OFLA; this OFLA- only leave entitlement allows an eligible employee to take leave to care for his/her child suffering from an illness or injury that requires home care but is not a serious health condition.)

Second, while both the FMLA and the OFLA allow for an eligible employee to take leave for his/her own serious health condition, that leave is only available for periods of time during which the employee is not able to perform one or more essential functions of his/her job. Joy’s request is premature to the extent that she is seeking leave now because she fears being unable to perform her job in the future.

Third, we are a bit concerned by your report that Joy said “it” (mental breakdown) has happened before. It is unclear what that means. It may be that Joy currently has a condition that interferes with her ability to perform the duties of her position. (For example, she may be inarticulately letting you know that she experiences periodic flare-ups from an ongoing mental condition, such as an anxiety disorder.) If that is the case, then Joy may be entitled to take FMLA/OFLA leave now. It may also be the case that there is a buried request for accommodation (under the ADA and state law).

Thus, the best course of action is to have a conversation with Joy to find out more specifically what she is requesting and her reason for requesting it. This is an information gathering opportunity for you. You want to better understand the what and the why. 

If in this conversation Joy makes is clear that she is concerned about a potential future incapacity, rather than a present limitation, then it may be that you ultimately tell her that FMLA/OFLA leave is not available for periods of time when there is no incapacity. On the other hand, if it appears that Joy is asking for time off because she is currently affected by a serious health condition, then she may well be entitled to take leave now. In that case, you would want to provide her with FMLA/OFLA notice and request that she obtain medical certification of the need for leave.

I hope this helps. Good luck and best regards,

The Bullard Edge

Print

About the Editor

Be informed, engaged and sometimes entertained

Michael G. McClory joined Bullard Law in 1997. He likes talking about employment law, debating it, proposing revisions to it and even complaining about it.  Perhaps so they could get some work done, his colleagues at Bullard Law suggested that he start a blog about employment law issues (broaden the conversation). And that is how this blog came to be. 

The blog is a forum for discussion about employment, labor and benefits law - new laws, proposed laws, case decisions and social events. Mike will share his views and invites you to respond.  Reader feedback is valuable and will be featured from time to time. Join the discussion with Mike and sign up for the Bullard Law Blog today.

Blog Archives

Blog

Subscribe to Email Updates