Think Twice Before Denying FMLA Leave for "Babysitting"

Human Resources professionals occasionally receive requests for FMLA leave when an employee is unable to arrange for day care services for their child. While in many cases FMLA leave is not available for routine “babysitting,” a full evaluation of all the facts must be performed before the request is denied. A Wisconsin company recently learned this lesson the hard way - its misunderstanding of FMLA family care provisions resulted in a jury award of significant damages to its employee.

Facts of the Case

Tracy Wink was employed by Miller Compressing Company, a scrap metal recycling company located in Milwaukee. She worked in the order processing department.

Ms. Wink had a two-year-old son with autism. In February of 2012, the day care provider who had been caring for Ms. Wink’s son terminated their services because they were having difficulty with her son’s occasional aggressive behavior (a symptom of the autism). Ms. Wink arranged to have her mother watch the child for three days a week, but she was unable to locate a suitable care provider for the remaining two days. Ms. Wink requested permission to work from home for those two days, and Miller Compressing agreed to the telecommuting arrangement.

However, in July of 2012, Miller Compressing decided it was going to end all telecommuting arrangements with all employees. A Human Resources officer of the company met with Ms. Wink on a Friday and gave her an ultimatum – she would be required to work all five days of the week, starting the following Monday.

Ms. Wink indicated she did not believe she could locate appropriate child care for her son by Monday and asked if she could take FMLA leave for the two days she lacked a care provider for her son. The HR officer informed Ms. Wink that she could only take FMLA leave for “doctor appointments or therapy” and that babysitting did not qualify for FMLA leave as “all children need day care.”

Ms. Wink came into work on Monday and informed the Company that she had not yet been able to locate child care for her son. The company responded by terminating her employment.

Lawsuit and Appeal

Ms. Wink sued Miller Compressing for retaliation for requesting FMLA leave. She sought recovery of her back pay, interest and attorneys’ fees, as well as liquidated damages. Under the FMLA, liquidated damages (which effectively double the back pay award) are awarded to a successful employee unless the employer can establish that it acted in “good faith.”

A jury found in Ms. Wink’s favor and awarded her back pay, interest, attorneys’ fees and liquidated damages. Miller Compressing appealed the award to the Seventh Circuit Court of Appeals seeking a reversal of the jury award and asserting that, even if its HR officer’s statements to Ms. Wink were inaccurate, they were the result of an innocent misunderstanding of the FMLA and therefore were still made in good faith.

On January 9, 2017, the Seventh Circuit affirmed the jury award and rejected the employer’s argument that it acted in “good faith”. The Court noted that under the facts of the case, Ms. Wink was entitled to take FMLA leave for her autistic child, and that the HR officer’s statements were properly construed by the jury as retaliatory, and not in good faith.

Lessons of the Case

There are several important lessons that HR professionals should learn from the Miller Compressing case:

1. Avoid Casting Yourself as an Ogre. It is a legal axiom that “bad facts make bad law.” In Miller Compressing, some of those “bad facts” likely colored the jury and judges’ initial impressions of the company. These included the fact that the employee was dealing with a two-year-old child with autism, and that autism was of a particularly serious nature (causing aggressive outbreaks and making child care arrangements very difficult). The jury likely had significant sympathy for the difficulties, stresses and anxieties that this working mother faced on a daily basis in caring for and parenting her child, in addition to her day-to-day work duties. In stark contrast to these sympathetic features of the mother’s plight, the employer’s actions seemed overly harsh, arbitrary and cruel. While the employer had the legal right to end the telecommuting practice, its failure to give adequate warning and time for the mother to secure alternative care for her son seemed unnecessarily harsh. More importantly, the Court’s decision paints the Human Resources officer as either grossly misinformed about FMLA rules for family care or intentionally rude and condescending to the employee/mother. Juries routinely punish employers for such attitudes of its managers and HR staff. Thus, it is no surprise that the appellate court rejected the employer’s argument that it acted in “good faith” even if there was an “innocent misunderstanding” of the FMLA.

Thus, the first lesson from Miller Compressing is very basic: avoid conduct that would embarrass your employer in front of a jury or would create the appearance of a non-caring, unreasonable villain eager to terminate a hapless employee. Be sure to take all the facts into consideration when making a final employment decision, including non-legal factors which could impact a jury’s sympathies.

2. Don’t Misstate the Law. A second lesson from Miller Compressing is “be sure of the law before you talk with your employees.” The HR specialist from Miller Compressing mis-stated the circumstances when FMLA leave is available for care of a family member. Juries and judges will presume that HR staff members are familiar with the laws they administer. The failure to accurately recite such laws will often be viewed as a deliberate attempt to undermine the employee’s FMLA rights and, as was the case in Miller Compressing, evidence of retaliation. (In fact, the dissemination of inaccurate information alone, even if erroneous, has been held to constitute interference with FMLA rights.)

It is therefore critical that all those who are involved in the administration of FMLA leave be thoroughly trained in the provisions of both state and federal FMLA rules and receive periodic refresher training to ensure continued compliance.

3. Carefully Review FMLA Provisions for Care of Family Members. Managers and HR professionals often confront challenges when employees seek leave to care for family members. The following are some of the key provisions governing leave for family care under the federal FMLA regulations:

   • The family member must have a “serious health condition.” (Note: The definition of “serious health condition” under the federal FMLA is somewhat more stringent from the definition of “disability” under the ADA. The FMLA definition of “serious health condition” includes the requirement of “incapacity,” which is defined, in part, as an “inability” to engage in certain activities. The ADA definition of “disability” only requires a “substantial limitation” in engaging in certain activities.)
   • An employee is entitled to take FMLA leave when their family member has a serious health condition and is:
     • Unable to care for his or her basic medical, hygienic or nutritional needs,
     • Unable to care for his or her own safety or
     • Unable to transport themselves to the doctor.
   • The employee may take FMLA leave to:
     • Provide the above needs or
     • To provide “psychological comfort and reassurance” to their family member.
   • The employee may take such leave to:
     • Substitute for others who normally provide the care,
     • Make arrangements for changes in the care or
     • Provide the care even though others are available to provide the care.
   • The employee may take the leave intermittently when:
     • The medical condition of the family member occurs only intermittently or
     • The need for the employee to take leave is only intermittent (for example, when others are normally available to provide the care).
   • A “child” may be an adult child if that adult child is “incapable of self-care” due to a disability as defined under the ADA.

   Unfortunately, the HR officer for Miller Compressing either was unaware of the above provisions or failed to take into account the many situations beyond “doctor appointments or therapy” for which an employee may qualify for FMLA leave. When confronted with family care requests, it is a good idea to pull out the federal FMLA regulations (as well as the state FMLA counterparts) and go through each element of the regulation before making a decision on the leave request.

4. Day Care (or “Babysitting”) May or May Not Qualify for FMLA Leave. When an employee requests FMLA leave to provide day care services for their child due to a conflict with their normal day care provider, it can be a tempting knee-jerk reaction to respond that FMLA leave is not for babysitting. However, a seasoned HR professional must be wary of potential risks in all FMLA situations and make sure that they have evaluated all of the facts before responding to the employee. For example, the initial question to the employee might be, “Does your child have a serious medical condition?” If the answer to that question is “no,” then the response becomes easier.

The employer has the right to demand that the employee produce a medical certification from the child’s health care provider to demonstrate that all of the elements of “serious health condition” are met before the FMLA is approved. The HR professional can caution the employee that if a “serious health condition” is not established, then FMLA leave would not be available. If the employee has already taken time off while the medical certification process was occurring, those days could be considered unexcused (unless the employee had other time off available).

As noted above, there are many situations where an employee may legitimately take FMLA leave to provide day care services for their son or daughter when the normal care provider is unavailable, if the son or daughter has a “serious health condition.” If the above elements of the FMLA are met (as well as the basic requirements that the employee has FMLA leave available, has worked the necessary threshold time and hours to qualify for the leave and has complied with the company’s standard FMLA request procedures), then the leave must be granted.

Final Takeaways

The Miller Compressing case is a stern warning to HR professionals that they must be very careful to fully evaluate all FMLA leave requests before reaching any conclusions about the availability of FMLA leave. Cases involving care for family members can be particularly challenging, especially if managers view the request as merely seeking time off for “babysitting.” HR professionals must be well trained on the various provisions of state and federal FMLA in order to avoid providing inaccurate information to employees. If this occurs, judges and juries will construe such mistakes to be intentional and will punish your business for the mistake.

Additional information on the Miller Compressing case or on state and federal FMLA leave laws may be obtained from the Employment Law Team at Conway, Olejniczak & Jerry.

Written By:
Attorney Gregory A. Grobe