The discussion around FMLA continues as host Amber Clayton and Helen Applewhaite, Director, Division of FMLA and Other Labor Standards, U.S. Department of Labor, Wage and Hour Division, dive into specific scenarios and whether they qualify for FMLA. They also cover how the U.S. Department of Labor can help you stay in compliance with FMLA.
The discussion around FMLA continues as host Amber Clayton and Helen Applewhaite, Director, Division of FMLA and Other Labor Standards, U.S. Department of Labor, Wage and Hour Division, dive into specific scenarios and whether they qualify for FMLA. They also cover how the U.S. Department of Labor can help you stay in compliance with FMLA. Watch part one here.
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Monique Akanbi:
Welcome to Honest HR, the podcast for informed and aspiring HR professionals intent on transforming workplace challenges into golden opportunities.
Amber Clayton:
Every week, we chat with industry experts to bring you insights, trends, and actionable advice through relatable stories through the real world of HR.
Wendy Fong:
Honest HR is a SHRM podcast. By listening, you're helping to build a more engaged workforce and drive organizational success. I'm Wendy Fong.
Amber Clayton:
I'm Amber Clayton.
Monique Akanbi:
And I'm Monique Akanbi. Now let's get honest.
Amber Clayton:
Now let's get honest.
Wendy Fong:
Now let's get honest.
Amber Clayton:
In our last episode, I sat down with Helen Applewhaite from the US Department of Labor to discuss your most common questions around FMLA. In this episode, the conversation continues, as Helen and I dive even deeper into FMLA, tackling which scenarios qualify for it, and how the DOL may be able to help you navigate these regulations.
Another question that we've gotten before is if someone wants to take FMLA leave because they have a family member with a serious health condition, but that family member is in a hospital where there are other people that are taking care of that person. Would that employee qualify for FMLA leave if they're not the primary caregiver?
Helen Applewhaite:
Sure, absolutely. Needed to care is part of the aspect of taking leave under the FMLA, when the leave is for your family member. We've got some really helpful guidance on those pages that I pointed you to, that deal with that aspect of what do we mean by needed to care.
It means it can be that I'm having to give the individual medication, or help the individual with basic medical care or other care. But it also can be I'm needed to transport the individual to healthcare appointments. Or it can be I'm needed to provide psychological comfort. It's very broad in what is meant by needed to care for.
Amber Clayton:
Yeah. I actually was going to ask that. If I had a child who was autistic, I needed to take my child to their childcare, would that be covered?
Helen Applewhaite:
That one's a little bit trickier. A little harder, and probably case-specific as well. If my child is on the autism spectrum, and I'm dropping him off at school along with all of the other parents, and picking him up at the end of the day, and it's just basically drop off and pick up, then I'm probably not going to have FMLA protections for that. But if it is related to that care, then those would kick in.
We don't have something specific on that question of the drop-off, pick up for the autistic child, we don't have anything that specific. But we do have some guidance out there that provides information for the IEP meetings, or the development of ... Sorry, I'm blanking on the name of it. But the type of care that might be a part of the development of their plan at school. We do have guidance out there that's specific to that. It can be quite broad, in terms of what is needed to care for the family member where there's a serious health condition established.
That's the other aspect of it that you want to make sure you're aware of, and that the audience is aware of. It is to care for that family member because the family member has a serious health condition. A serious health condition itself is specifically defined within the FMLA through those criteria that we put out there.
Amber Clayton:
Great, thank you. I want to go back on the pregnancy piece, because I thought of a question that we get sometimes. That's around can I take FMLA leave to care for my daughter who's having a baby?
Helen Applewhaite:
That's going to be another really fact-specific one. Generally, no, if your daughter is older than 18. Because a family member under FMLA is also very specifically defined, and generally it's going to be a son or daughter whose under 18, because of their serious health condition.
Now you can take leave to care for an adult child, a son or daughter whose over 18, and incapable of self-care because of a mental or physical disability. In that instance, the individual would have to be incapable of self-care, they'd have to be defined as having a disability. We use the same definition there that the ADA does, and understand their expanded rules, the AD-Triple-A, as we say. You would look to that. Does it meet the definition of disability under those requirements? But then also, is the individual incapacitated because of a serious health condition under the FMLA?
If the answer to all of that is yes, then you could take leave in those instances. We do see instances where it does meet the criteria, and the grandparent can take leave to care for the adult child whose having the baby. But it has to meet those criteria to get there.
Amber Clayton:
Got it. That makes sense. What if I'm not the mother, the father, the parent? Let's say I'm an aunt who takes care of my niece and my niece has a serious health condition. Could I take FMLA leave for her?
Helen Applewhaite:
You're going to make it a little easier on me this time, and that niece is 12?
Amber Clayton:
Yeah. We'll say the niece is a minor.
Helen Applewhaite:
Okay. Possibly, very possibly. The definition of parent under the FMLA is also pretty expansive, pretty broad. It includes the natural parent, it includes stepparents, it includes foster parents. It includes anyone who is standing in loco parentis to the child. It also works the opposite way, if I wanted to take leave to someone whose stood in loco parentis for me when I was a child as well. If it meets that in loco parentis definition in your niece scenario, then it is going to be a relationship that would be recognized under the FMLA. As long as the niece meets the serious health condition criteria, then in that case, the aunt could take leave to care for her.
Amber Clayton:
For our audience members who might not be familiar with the term in loco parentis, could you tell us or clarify for them what that means?
Helen Applewhaite:
I can. I can also tell you that we do have resources specifically on the question of in loco parentis on those web pages that I pointed you to as well.
It basically means that I stand in the place of the parent. I have day-to-day potentially financial responsibilities for that child. Or plan to have, because it could also cover instances where I'm not the birth parent, but that is going to be my child in my home, and in loco parentis situation when the child is first born as well. But it basically means that you're standing in the place of the parent.
It's not the situation where you're providing a lot of extra care for an individual for whatever relationship exists there that's leading you to be extra supportive in different ways, but you have that day-to-day responsibility for the child. You provide financial responsibility. You provide the care of the child. That's what you're looking for. Is it that person has that day-to-day responsibility?
It could be the scenario of an aunt or an uncle whose caring for the niece because the parents aren't able to. Maybe they're incarcerated or have passed away, but there's not been an adoption or other legal relationship established but you're still the day-to-day parent for that child. Or it could be situations where, like I mentioned before, you have a couple, and they're not married, but they're still both going to be caring for the child in the home.
Amber Clayton:
Could the employer ask for some type of documentation that this person is caring for the niece?
Helen Applewhaite:
Yes. They can ask for a simple statement from the employee of the family relationship. That same documentation of family relationship applies to in loco parentis relationships, as well as to any other.
Amber Clayton:
Okay. Thank you. One of the things that you mentioned was about the mother/father or husband/wife. Can you just clarify who is eligible for the birth of a child, or the baby bonding?
Helen Applewhaite:
Well, I'll make it simple and say both the mother and father are equally eligible for leave for bonding with the child.
Amber Clayton:
Okay. When they work for the same employer, we know that there are some regulations around that. Could you tell our audience a little bit about that?
Helen Applewhaite:
Sure. There's some limitations on the amount of leave that may be taken in certain circumstances when a husband and wife work for the same employer. One of those is for the birth of the child for bonding specifically. You can be limited to a combined total of 12 work weeks for leave, which is the total amount of leave you can take in a leave year for any individual under FMLA. But that total can be combined for a husband and wife working for the same employer who are taking leave for bonding with their newborn or newly placed child.
Now that limitation doesn't apply to a serious health condition. If the child has a serious health condition and you're taking leave related to that serious health condition, it would not be limited to the combined total of 12 weeks. Each parent could take up to 12 weeks for that reason. Or for their unserious health condition, they could still take up to 12 weeks.
It gets a little bit of math gymnastics that we do when we're starting to figure out how does it apply in specific situations. But for that bonding purpose, the husband and wife working for the same employer, can be limited to that 12 weeks of leave for bonding.
Amber Clayton:
That combination doesn't apply if, say it's not a husband and wife, but rather it's a mother and a father. They're not married, but they both want to take bonding leave for their child.
Helen Applewhaite:
That is true.
Amber Clayton:
If they work for the same employer, I should say that.
Helen Applewhaite:
Yes. If it is two people who work for the same employer who are not married under any definition of married, common law marriage is included, then they could each be entitled to 12 work weeks of leave for the bonding for that same child.
Amber Clayton:
Thank you. Now after the pandemic, of course, we know that many employers allowed their employees to work from home. We still have a number of employers who allow their employees to work remotely. When someone works remotely, when it comes to the eligibility for the FMLA leave, or for being a covered employer, how does that work when they're working from home?
Helen Applewhaite:
The principles work in the same way for FMLA for working from home as from any other location, first of all, just in terms of a serious health condition or any other aspects of it.
But you're right, when it comes to counting eligibility, the eligibility requirements include that you work at a location where there are at least 50 employees at that location, or within 75 miles of your location. When it comes to teleworking employees, those employees are counted based on where their work is assigned from, or where they report to for their work, which is not going to be their home. There's a lot of different iterations of how these situations can be set up as well.
But you may have a location that is a main office from which all work is distributed. Or you may have regional offices, and employees teleworking that report to that regional location. If you've got the regional office location, for example, then that's the location that you're looking at. Do 50 employees work within 75 miles of that regional office location? Then, whether that teleworking employee is within 75 miles or not really doesn't matter. If there's 50 employees within 75 miles of that location, then that employee whose teleworking and reporting to that regional office location is going to be an eligible employee. They're going to meet that criteria.
Again, it's one of those fact-specific scenarios, where you're going to look to the location from which the work is assigned or to which they are reporting. And then, who else is working from that location, or reporting to that location, or getting their work assigned from that location. You really have to look at what are the facts and the specific circumstance.
By the way, we do have guidance on our web pages that deals specifically with telework, both under the FMLA and the FLSA requirements as well, that may be helpful for our audience to check out.
Amber Clayton:
Okay, very good. I have one more question for you. I know I've asked you a lot of questions today, and we really appreciate all the information.
Helen Applewhaite:
It's been a little bit of a pop quiz on FMLA.
Amber Clayton:
Yeah, just a little bit, but you have years of experience in this area.
Helen Applewhaite:
It's quite all right. I hope I'm passing.
Amber Clayton:
You are the expert. You are the expert.
What happens if an employer doesn't comply with the FMLA?
Helen Applewhaite:
Bad things happen.
Amber Clayton:
Bad things happen. What types of bad things? Let's tell our audience what types of bad things can happen.
Helen Applewhaite:
Well, first and foremost, you're out of compliance with the law. That has the impact on your employees, and your employees' ability to be loyal, and trust, and be able to get their needs met too, to be able to do the work that you need them to do. It's a bad thing in that way.
We also know that you have a private right of action under the FMLA, an employee who is impacted by being denied leave or having leave held against them in a performance appraisal for example, or a demotion, or any other way. Or being terminated for having taken the leave. Any of those reasons, they can file suit against an employer. You certainly can also file a complaint with the Wage and Hour Division. We are an enforcement agency, we have authority to enforce the FMLA, and we do enforce the FMLA. We do have lots of actions under the FMLA.
What we find primarily though is that most employers do want to comply with the requirements of the laws that we enforce, including the FMLA. And that they may have questions, and may not always understand all the nuances of how to apply that to an in loco parentis situation, for example. Or when can I get recertifications? There can be lots of questions related to that. We do have the resources available out there, including an employer guide to the FMLA that we've gotten pretty great reviews on that walks you through all aspects of FMLA protections and your responsibilities as an employer.
We also take compliance assistance calls from employers regularly. They can call our offices, and ask their questions and get their answers so that they can stay in compliance with the law. If you're not in compliance, if we investigate, we're going to look at what are you doing. We may have a complaint, or we may be doing it for other reasons, we don't have to have a complaint to do an investigation. It could be complaint-based, or it could be we're looking for compliance more broadly for other directive reasons that we have.
We are going to then look at how you're applying that to all employees. We may ask you to go back and look at any harm to any employee that could have resulted from the actions that were in violation of the law. We're going to ask you to redress that. To restore employees if they were terminated, to remove points if you have an attendance points system, to remove references in ratings, et cetera. We're going to ask you to make that corrective action.
We also can ask for any back wages that would be due, or front pay in an instance where there's a constructive discharge. We can ask for liquidated damages, which could be twice as much as whatever the amount of monetary damages might be, too. There's also equitable damages that are available under the FMLA, which could include the cost of medical care if insurance was canceled improperly because leave was denied. There's a lot of potential remedies that might be due in any specific circumstance.
I will tell you, I've got more than 30 years experience, both as an investigator and from working on policy in the national office, and working directly with the FMLA, our experience very broadly is that most employers want to do the right thing. They want to comply. They want to provide their employees with protections that are available to them. Of course, they want to do so with assurances that it's within the requirements of the law as well. I would encourage any employer to call our offices, to check out our website with any questions that they have to try to get those questions answered. We will help you stay in compliance with the requirements.
Amber Clayton:
I appreciate you saying that. I fibbed, because I do have two more questions for you.
Helen Applewhaite:
Okay.
Amber Clayton:
For the employers who are concerned that it might raise red flags if they contact the DOL directly to ask these questions, what would you say to those individuals or those employers?
Helen Applewhaite:
I would try to be very reassuring. We're not looking to try to do a get you. We've got plenty of work. We have lots of bad actors out there who try to get away with things, as well as most of the employers who are wanting to do the right thing. We've got our hands full and we're not going to come after you because you ask a question. We want to help you get it right.
Like I said, we have a lot of resources. I encourage people to use those resources. But it's not always easy to figure out on your own exactly what is meant by that in specific circumstances. We do outreach regularly, as a part of the work that we do. It's just as important to provide the information and help you be in compliance as it is to do the enforcement side, and try to get things corrected as quickly, and efficiently, and as appropriately as possible every time we see a violation happening through our investigation processes.
But contacting our offices for information about what is required is not going to result in an action against an employer. It's not necessary. We want you to do the right thing. We want to give you the information so that you can do the right thing.
Amber Clayton:
When you say contacting their offices, you're speaking of the state's Department of Labor offices, not necessarily the US Department probably?
Helen Applewhaite:
I'm speaking of the US Department of Labor.
Amber Clayton:
Oh! Okay.
Helen Applewhaite:
We have offices throughout the country-
Amber Clayton:
Oh, that's what I meant.
Helen Applewhaite:
Local offices where we do the investigations. If I can do it really quickly here, I'm going to give you the 800-number for reaching us.
Amber Clayton:
I know there's a page on the Department of Labor website that actually lists out all of those state offices-
Helen Applewhaite:
That's right.
Amber Clayton:
With their contact information. We've actually given that out to members who have asked us questions and they need some additional clarification from the DOL.
Helen Applewhaite:
That's right, you can. You can go on our website. Just go to the www.dol.gov/agencies/whd. You can get to the information on how to contact us. That includes being able to contact us at the 800-number. I'm sorry, I'm going to find it, and pause, and get back to you on that.
Amber Clayton:
Yeah, that's perfectly fine. While you do that, Helen, just lastly, are there any other thoughts that our audience should take away with regards to FMLA and being in compliance?
Helen Applewhaite:
I think don't be afraid is the main thing that I would say. Don't be afraid to contact us. I've got the 800-number here, I'm just not quite as efficient as my staff are with this stuff. It's 866-4USWAGE. That's 866-487-9243. We operate Monday through Friday, 8:00 to 4:30 in local time. Of course, the hours vary by region. But calling that number, you can get directed to the local office that is near your geographic area. It's going to be the office that would be responsible for enforcement in that area. They're going to tell you exactly how they would look at a specific situation. It's going to be really, really helpful to be able to make that call and ask those questions.
But also, look at our resources available on the website. You'll see email contact information, and other ways to contact us as well if there's additional clarification that's needed. Sometimes, if you're contacting that local district office and it's a question that is more in-depth that they don't have the answer ready for you, they'll go through their regional contacts who may also come through us directly to get more specific information and more specific response to the questions that employers have because we want to help you to be able to comply.
Amber Clayton:
It may actually save the employers' some dollars calling their attorneys.
Helen Applewhaite:
It's possible.
Amber Clayton:
They might be able to get the answers straight from the Department of Labor.
Helen Applewhaite:
That is possible.
Amber Clayton:
Great. Well, any other thoughts for our audience?
Helen Applewhaite:
No. This has been great. We're always available to answer questions and to do outreach.
The other thing I guess I would add to that is that, at those local offices, they have personnel who are specifically tagged with doing outreach. If employers or employer associations in the local area are interested in getting a presentation on the FMLA, or any of the other laws that we enforce, the district offices can also assist with that. We can help with compliance at all levels.
Amber Clayton:
That is absolutely great. Well, Helen, we really appreciate you joining us today. We've learned so much about FMLA. I could go on and on about FMLA with questions.
Helen Applewhaite:
Me, too.
Amber Clayton:
But you have been extremely helpful with all the knowledge that you have. Thank you for joining us.
Helen Applewhaite:
It's been my pleasure.
Amber Clayton:
For our audience members who are SHRM members, you can find resources specific to this topic on shrm.org. Or you can also contact SHRM's Knowledge Center and ask one of our HR advisors for assistance. That's at shrm.org/hrhelp.
Before we say goodbye, I encourage everyone to follow Honest HR wherever you listen to your podcasts. Also, audience reviews have a real impact on a podcast's visibility, so if you enjoyed today's episode, please take a moment to leave a review and help others discover the show. Finally, you can find all of our episodes on our website, shrm.org/hrdaily. Thanks for joining the conversation, and we'll catch you next week.
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