By Jason Boulette

Q     An employee's dad is being flown to another hospital for COVID-19 treatment. She needs to drive her mom to the new hospital and therefore will miss at least one day of work. Would her time off qualify as Family and Medical Leave Act (FMLA) leave, assuming she’s otherwise eligible for and has FMLA leave remaining?

A     Absent additional information indicating the employee is needed to “care for” the father (including providing psychological comfort), she wouldn’t appear to qualify for FMLA leave.

The FMLA provides time off for an eligible employee to care for an immediate family member with a serious health condition. The employee’s father is her immediate family member and providing care can include providing psychological comfort. Even assuming the father’s underlying COVID-19 condition is a serious health condition (the fact he is being transferred from one hospital to another suggests it is), there’s no indication the daughter is needed to care for him.

That said, the best answer here is likely the practical one: Approve the one-day absence, and never hold it against the employee. The situation doesn’t appear to be a recurring issue, and approving a single missed day buys a lot of goodwill and avoids spending unnecessary time speaking to counsel.

Of course, if you intend to deny the requested time off unless you are legally required to provide it by the FMLA, counsel might wish to have a candid discussion with you about the impact the denial will have on the employee to make certain you understand the risks involved are more than just legal. If you understand this and nevertheless wish to deny the time off unless you are required to grant it, then counsel would want additional information to determine if the daughter is needed to care for the father directly, including providing psychological comfort. If so, the time off would be covered, assuming the father’s underlying COVID-19 qualifies as a serious health condition.

If not, the next discussion would be around a potential claim that the mother was needed to provide psychological comfort to the father and the daughter was needed to get the mother to the hospital such that she was (in a sense) needed to provide care, which is a much more difficult legal claim for the employee, given the myriad of other ways the mother could reach the hospital to provide the necessary psychological comfort.

Jason Boulette is an attorney with Boulette Golden & Marin LLP in Austin, Texas. Jason is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization and currently serves as a member of the Leadership Council for the Employment Law Section of the State Bar of Texas. His firm represents employers in employment, litigation, and corporate immigration matters. You can reach him at jason@boulettegolden.com.