Thursday, January 12, 2017

FMLA Leave to Care for Autistic Child

The Family and Medical Leave Act entitles eligible employees to take up to twelve (12) work weeks of leave during a twelve (12) month period for qualifying reasons, including care for a child who has a serious health condition.

In Wink v. Miller Compressing Company, the Seventh Circuit US Court of Appeals upheld a Judgment in favor of Tracy L. Wink against her former employer, Miller Compressing Company, for retaliation in violation of the Family Medical Leave Act (FMLA).  Miller terminated Wink after demanding she work at the office five (5) days per week.  Wink had previously worked at home two (2) days per week in order to care for her autistic child.  Wink’s child had been expelled from daycare because of his aggressive behavior, a product of his autism.  Wink’s mother watched the child the remaining three (3) work days.

Miller’s Human Resource officer incorrectly told Wink that FMLA only covers doctor appointments and therapy.  Wink was told on a Friday to find daycare arrangements and report to work Monday at the office.  Wink was unable to make daycare arrangements for her child over the weekend.  Wink reported to work Monday but had to return home to care for her child.  Miller considered Wink’s absence from the office a “voluntary quit” and processed her termination.

The Seventh Circuit upheld the Jury’s decision that Wink was terminated by Miller in retaliation for asserting her FMLA rights “to take leave necessary to enable her to take care of her sick child for several hours two (2) days a week.”  Wink was awarded damages and attorney fees, as allowed under FMLA for the retaliation by her employer.

Employers need to exercise caution in addressing employee family medical conditions.  Employers are required, under FMLA, to grant intermittent leave in order to care for children with a serious health condition.  Effective January 1, 2017, Illinois Public Act 99-0841 (Employee Sick Leave Act), also requires that employers allow employees to use their sick leave to care for their children and other dependents, including spouse, domestic partner, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or step-parent.