Volume 6, Number 2, Summer-Fall 1997
In response to an inquiry, APMP Farm Advisors Steve Sutter and Brian Linhardt recently examined applicability of the Family and Medical Leave Act to employees who need to care for family members living outside the United States. We thought their advice would be of interest to LMD readers, and, with Brian's and Steve's permission, present it below in question-and-answer format. At the end is an annotated list of additional references available on the Internet, provided by Howard Rosenberg.
We also welcome readers' queries and comments sent directly by e-mail, telephone, or regular mail (see "Agricultural Personnel Management Program Staff") or by way of the "Electronic Farm Call" page on the APMP website at http://are.berkeley.edu/APMP/.
Q: A worker whom I employ has an ill parent in rural Mexico. Does my company have to grant family medical leave if the employee requests it?
A: Yes, if the employee is covered at all by the FMLA. Employers with 50 or more employees (working within 75 miles of a single site) for each working day during each of 20 or more calendar work weeks in the current or preceding calendar year must post "Family and Medical Leave Act," WH 1420 or 1420S (Spanish). The poster informs employees that they're eligible for up to 12 weeks of unpaid leave to care for an ill family member who is incapacitated more than 3 consecutive days, if they have worked for at least 1 year, and for 1,250 hours over the previous 12 months.
Q: How can the company verify the seriousness of the parent's illness with the standard measures used, i.e., hospitalization or continuous medical care? Folks in rural Mexico usually have to make do with visiting physicians.
A: "A visiting physician would be considered a health-care provider under FMLA," according to a DOL officer contacted in Washington D.C. (202/219-8412). The person taking the leave doesn't need to do any administration of medical services, he said. "A lot of times it's just sitting by somebody's bedside."
Note, however, that treatment of the family member by a health-care provider must be either (1) two or more times or (2) at least one occasion that results in a "regimen of continuing treatment." Regimen of continuing treatment excludes simply taking of over-the-counter medications, bed rest, and other similar activities that can be initiated without a visit to (or from) a health-care provider.
Q: Should the employee who is granted leave under FMLA be required to return with a letter from the family member's physician?
A: Sure. The employer can specify the form of documentation under the FMLA and California's similar Family Rights Act (FRA).
Q: Or is an employer best served to not require verification of the employee's claims?
A: That would certainly be a "liberal" policy (uniformly applied, of course) and would probably be appreciated by full- or close-to-full-time employees. Now, if everyone has a seriously ill parent, spouse, or child in November, the employer may want to reassess its FMLA medical certification policy.
The Wage and Hour Division discusses FMLA (Title 29, Part 825) at length in Publication WH 1419 (April 95), available by phoning: 916/979-2040. It contains a "Prototype Notice: Employer Response to Employee Request for FMLA Leave" (Form WH-381).
The U.S. Department of Labor has very helpful pages on the FMLA at: