Five Common Situations Where the FMLA Does Not Apply

Employers and employees alike often don’t understand when the FMLA does, or does not apply. Here are five common situations I’ve encountered where the FMLA dose not apply.

Funerals – I’ve spoken with numerous individuals who are upset that their employer would not allow them to use FMLA leave to attend a funeral. In these instances, the employer is correct. The underlying premise of the FMLA is to provide job-protected leave to employees due to their own serious health condition that renders them unable to work or to care for an immediate family member’s serious health condition. Sadly, once an individual has passed away, there is no longer a serious health condition that can be cared for. Although many companies offer bereavement leave or funeral leave for these situations, some do not and unfortunately FMLA leave is not a viable alternative in those situations.

Grandparents – The FMLA’s definition of immediate family members is limited to spouses, children, and parents. Thus, employees are not entitled to job-protected FMLA leave to care for a grandparent’s serious health condition. However, there is an exception to this. The FMLA does not penalize adopted status so if a grandparent has adopted their grandchild, that could make them a parent and child for FMLA purposes and, therefore, entitle them to use FMLA leave.

In-Laws – Unlike adopted status, the FMLA does not extend leave entitlement based upon marital status (with the exception of spouses). Although for many employees in-laws are just as much parents as their own parents are, the FMLA does not treat them as such.

Civil Unions – Gay marriage is a highly debated topic in many states around the country, including in Indiana. Although Indiana has not adopted civil unions as an alternative to marriage, many states have and many Hoosiers have traveled to those states in order to formalize their relationships. Those civil unions, although meaningful to the couples and their families, do not presently vest Indiana employees with an entitlement to FMLA leave. The ability to use FMLA leave to care for one’s same-sex partner is yet another example of why the gay marriage debate is unlikely to go away anytime soon.

Rest and Relaxation – This may seem like common sense, but with the pressures and stresses many employees are subjected to in the modern workplace, I’ve encountered a surprising number of instances where employees have sought to use FMLA leave to “get away” and “unwind.” Although stress relief is certainly an admirable goal, the courts have been unwilling to extend FMLA protections to employees in these situations. That unwillingness includes situations when a doctor has filed out FMLA paperwork for the employee. The takeaway here should be that employees are free to take vacations, just don’t expect to use the FMLA while you’re relaxing by a pool in some tropical location.

Keep in mind, these five situations are not the only times the FMLA does not apply. However, they are certainly ones that I’ve seen play out on a fairly regular basis.