Q: We’re a nonprofit employer that has an employee whose spouse suffered a severe injury. Are we required to indefinitely provide a salary and Family and Medical Leave Act (FMLA) leave to this employee to care for the injured spouse?
No. You are correct that the FMLA can apply to nonprofit organizations just as it can to private businesses where they meet the specific criteria for coverage. You are also correct that an employee whose spouse suffers a severe injury may be eligible for FMLA leave to care for the injured spouse. However, although employee leave can at times feel indefinite, it is limited—to 12 weeks for most eligible employees, and 26 weeks for employees caring for military family members—and does not require paid leave. Employees may use that allotted leave intermittently, which often stretches the period during which the employee receives leave. But once the employee’s FMLA leave expires, an employer no longer needs to hold that employee’s position open.
While employers do well to consider their Americans with Disabilities Act (ADA) obligations to provide leave after FMLA leave expires, the ADA does not require leave to care for an individual’s family member. Accordingly, an employer can close an employee’s job once FMLA leave expires as long as the employee taking leave has no separate basis for requesting an ADA leave accommodation. However, the ADA does prohibit discrimination based on association with an individual with a disability—so employers, as always, should not use the spouse’s injury as a basis for discrimination.
No state in the intermountain west has an FMLA-equivalent statute providing indefinite leave.
Corey Hunter is an employment and litigation attorney in the Salt Lake City, Utah, office of Parsons Behle & Latimer. He can be reached at 801-536-6786 or by sending an email to chunter@parsonsbehle.com.