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Taxing Day - No Family Leave to Care for “Uncle Sam

April 18, 2014

By Michael G. McClory

April 15 is Tax Day and, fortunately, it has passed for another year. In addition to all of the good times (“…enter amount from Form XYZ line 12.d into the matrix on Form TMI and multiply by the greater of the amounts on lines 3 or 4 of the Tax Confusion Worksheet…”), Tax Day 2014 also provided an interesting question in the (fictional) mailbag.  Carrie Over, the operations manager at an area restaurant, has a question about a sous chef who missed four days of work, allegedly to care for his “Uncle Sam”.  Here is what she asks.

Carrie’s Question:

“Please tell me that I can fire Skip. He missed work 4 straight days, including 2 weekend days, and left our kitchen crew in the lurch. Skip sent a text message to me on Friday (April 11); he said that he had an issue come up, that he had to care for his Uncle Sam, and that he had to tend to this immediately. So with almost no notice I called Melody on her day off and told her she needed to help run dinner that night because Skip had a family emergency. I then sent a text to Skip and told him to let me know when he could return. Saturday Skip sent a text message and told me he would return on Wednesday (April 16), which meant I needed to find fill ins for Saturday, Monday and Tuesday; he was not scheduled Sunday. I did not know if FMLA or OFLA required me to give him leave to care for an uncle. What will it be next - time off to care for his first cousin’s in-laws? Anyway, I told him to see me on Wednesday when he came to work. Skip did come to work and brought a medical note for himself. The note said that Skip has a diagnosed anxiety disorder, that Tax Day had triggered an anxiety attack, and that he had a delusion that ‘Uncle Sam’ was a real person. In other words, Skip lied to me.  Can I fire him?"

The Bullard Edge’s Response:

Firing Skip, though tempting to you, likely is not the best approach. There are a number of issues in your question and I will try to address each of them.

First, FMLA and OFLA both require covered employers to allow eligible employees to take up to 12 weeks of leave for a qualifying purpose, such as to care for a family member. However, neither FMLA nor OFLA include “uncles” in the definition of family member. Of course, in Skip’s case, it turns out that there was never an actual uncle.

Second, under both FMLA and OFLA an employee’s own “serious health condition” is a qualifying purpose. The medical note that Skip provided suggests that he may have missed work due to a serious health condition. Needing time off to complete tax forms is not a qualifying purpose; a medical episode triggered by Tax Day may be a qualifying purpose.

Third, both FMLA and OFLA do require that an employee request leave. Where the need for leave is foreseeable, the law requires that an employee request leave 30 days in advance; when the need is foreseeable for less than 30 days in advance or is unforeseeable, then an employee must provide notice as soon as possible and practicable under the circumstances. Skip may have done that.

Despite all of the colorful facts, this seems like a routine family leave situation.  The best practice would be to follow your FMLA/OFLA policy in all respects.  Please feel free to contact Bullard Law if you have any FMLA/OFLA questions.

Best regards,

The Bullard Edge