Do phone calls count as FMLA leave?

I had an employee ask if phone calls to medical personnel can be used as FMLA time. She has to take calls from her husband’s hospice nurse during the work day; she works at a library and is not allowed to take personal phone calls on the job. Would FMLA come into play in this instance? Thank you.

Posted  09-16-2010

Ann Kiernan replies:

I could find no case on the issue, but I believe that, assuming there is proper medical documentation and sufficient advance notice of her need to speak to the hospice nurse during the work day, the employee is entitled to intermittent FMLA leave to do so.

The Department of Labor regulations explain that “needed to care for” a family member under the FMLA:

encompasses both physical and psychological care. It includes situations where, for example, because of a serious health condition, the family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor.

Based on what you have written, it appears that the husband is terminally ill and unable to care for his own medical needs, which makes his wife needed to care for him. The regulations also make it clear that:

An employee’s intermittent leave or a reduced leave schedule necessary to care for a family member…includes… where the employee is only needed intermittently – such as where other care is normally available, or care responsibilities are shared with another member of the family or a third party.

In my view, the phone calls with the hospice nurse would be covered by this provision.

 

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.

2016-11-18T16:00:41+00:00

About the Author:

Ann Kiernan has litigated claims of wrongful discharge and discrimination before state and federal courts and administrative matters before the New Jersey Division on Civil Rights, the National Labor Relations Board and the Equal Opportunity Employment Commission, representing both employers and employees. Ms. Kiernan co-hosted The Employee Rights Forum, a weekly radio call-in show reaching up to a half-million listeners in the New York metropolitan area, and her articles on employment law have been published in many books and magazines. Both as a firm partner and as a director, Ms. Kiernan gained solid experience in management and human resources compliance. She has worked with Fair Measures since 1997.