Our Company has more than 50 employees, so we are subject to the Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA). One of our long-term employees has asked for intermittent leave to go to the treatment facility where his spouse is receiving treatment for a “nervous breakdown.” Does this request qualify for FMLA?


You indicate that the employee requesting leave is a long term employee, but you should confirm that the employee has more than twelve months service with your company and has worked at least 1,250 hours during the twelve-month period before the date of the request for leave to make sure the employee meets these basic eligibility criteria. Then you will need to determine if the employee’s spouse suffers from a serious health condition, and whether the employee is needed to “care for” the spouse.

Under the FMLA and the CFRA, eligible employees may take up to twelve weeks of leave during a twelve-month period to care for a newborn child, to care for a child placed with the employee for adoption or foster care, or because the employee has a “serious health condition,” or the employee must care for a child, parent, or spouse who has a “serious health condition.” FMLA leave may be taken intermittently.

A “serious health condition” means an illness or injury, impairment or physical or mental condition that involves:

  • Inpatient care (i.e., an overnight stay) at a health care facility;
  • A period of incapacity requiring absence of more than three calendar days from work that also involves continuing treatment by a health care provider;
  • Under the FMLA only, disability due to pregnancy, childbirth or related medical conditions;
  • Any period of incapacity due to a chronic serious health condition (e.g. asthma or diabetes);
  • A period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective (e.g. Alzheimer’s, stroke, cancer);
  • Any absences to receive multiple treatments by a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (e.g. chemotherapy, physical therapy, dialysis).

Based on your description of this employee’s situation, it sounds as though the employee’s spouse has a mental condition that requires inpatient care. Assuming that the “serious medical condition” requirement has been met, the issue becomes whether your employee’s visits to the facility constitute “care for” the spouse. In addressing this issue, the courts have held that caring for a family member with a serious health condition involves some level of participation in ongoing medical or psychological treatment of that condition, whether inpatient or at home. This includes both physical and psychological care provided by the family member. It also includes providing psychological comfort and reassurance to a spouse with a serious health condition who is receiving inpatient or home care.

You can ask for a medical certification from the spouse’s health care provider to confirm that the condition meets the definition of a “serious medical condition,” and to confirm that the employee’s presence is necessary as part of the patient’s care. If the employee’s spouse’s health care provider certifies in writing that the employee’s presence at the facility is necessary to the spouse’s ongoing care and treatment, it will be very difficult to take the position that the employee is not needed to “care for” the spouse under FMLA.

If your employee’s presence is needed at the facility to assist in the spouse’s care, and provide psychological comfort and reassurance, leave may be provided on an intermittent basis, or for a block of time, depending on the need to provide care for the employee’s spouse. An employee’s intermittent leave necessary to care for a spouse includes not only a situation where the spouse’s medical condition is intermittent, but also where the employee is only needed intermittently, such as where other care is normally available, or care responsibilities are shared with another family member or third party.

Some examples of what courts have decided does not constitute “caring for” an immediate family member under FMLA, include the following:

  • Taking time off to relocate a teenager due to his mother’s concerns about his safety did not qualify as caring for him under FMLA because, even though the teenager suffered from some emotional problems, his relocation did not include enrollment or participation in any type of medical treatment for those problems.
  • Taking time off from work because a caregiver was abusing a toddler in her care did not qualify for FMLA because the leave was not taken in order to accommodate the treatment of a “serious health condition” (i.e., it was not medical in nature).

Because your employee’s spouse apparently does suffer from some type of medical condition, however, and your employee is summoned to the facility, your employee’s request for time to go to the facility will probably qualify for FMLA.
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