Caring for healthy children can be done on a leave
Published 03/18/05

If a worker stays home to watch her healthy children while her spouse cares to their hospitalized sick child, she may have job protection under federal law.

The Family Medical Leave Act ("FMLA") is a federal statute that requires certain employers to grant unpaid leaves of absence to care for a child or a parent with a serious health condition. For the worker to be entitled to this job protection he must have worked for that employer: (1) for a total for at least twelve months; (2) for at least 1,250 hours over the prior twelve months; and (3) at a location where at least 50 workers are employed by the employer within 75 miles of the work site where the worker requesting leave is employed.

On August 12, 2002, the United States District Court for the Eastern District of Louisiana in the case of Briones vs. Genuine Parts Company ruled that where Briones watched his healthy children while his wife tended to their sick child, that leave could qualify as FMLA leave and therefore afford Briones job protection.

The Court found that Briones, a factory warehouse delivery worker for a parts distribution center, learned on July 1, 2000 that his sixteen month old son had become very ill and required hospitalization for several days. Because his wife's presence was required at the hospital, Briones stayed home with his three other children during the night time hours when he normally worked. After Briones was fired, he sued under the FMLA.

The Court noted that while Briones requested leave to care for his healthy children, he did so only because his other child was experiencing a serious health condition. If Briones had been at the hospital while his wife watched the children at home, he would have been entitled to FMLA leave.

In light of those facts, the Court found that Genuine Parts' characterization of Briones' leave request as one of simply "babysitting healthy children", an activity not covered under the FMLA, focuses the inquiry far too narrowly.

Genuine Parts had also stated Brione was fired for being dishonest about his whereabouts while on leave but the Court found Brione provided enough evidence that the company's reason for the firing was untruthful and therefore, the Court would allow the case to go to trial.

Employers who are subject to the FMLA should consider with their employment legal counsel whether a worker's request to care for healthy children in order to enable a spouse to look after their sick child may be a legitimate protected leave.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

This information is general information and may not reflect the most current legal developments, verdicts or settlements. The information provided should not be relied upon as an indication of the actual state of the law or of future developments. The information contained on the Hamblett & Kerrigan website is for informational purposes only and does not constitute legal advice. If the information referenced may be of legal importance to you, you should consult with an attorney to provide you with legal guidance and opinion as the the effect of the current law upon your situation.