Skip to Main Content

Keeping you informed

FMLA Care Leave Rights Expire Upon Relative's Death

    Client Alerts
  • November 03, 2017

The Family and Medical Leave Act entitles eligible employees to up to 12 weeks of unpaid leave per year for, among other things, care of a spouse, parent, or child with a serious health condition (SHC). What happens to these leave rights, however, when the relative who is the basis of the entitlement passes away? Earlier this year, a federal district court confirmed that FMLA does not cover absences related to a relative’s death.

In Smith-Megote v. Craig Hospital, the employee received approval to be away from work to care for her sick mother in the Philippines. Early into the leave, the plaintiff’s mother passed away, but she did not return to work, remaining in the Philippines and then traveling to Spain to allegedly care for a sick sister. She did not inform her employer of her mother’s death, and the employer terminated her for unexcused absences after it became aware of the situation. The plaintiff filed suit alleging interference with her FMLA rights.

The Colorado federal district court dismissed the lawsuit on summary judgment. The court rejected the plaintiff’s three arguments as to why she was entitled to continuing FMLA leave after her mother’s death. First, the plaintiff introduced no medical evidence of her own SHC following the death. Second, the plaintiff’s sister was not an eligible relative under the FMLA leave entitlement. Finally, the court rejected the plaintiff’s estoppel argument that she was entitled to rely on the employer’s promise of leave for the full 12 weeks regardless of the intervening death. After her mother’s death, the plaintiff was not entitled to rely on a leave promise that was premised on her providing care.

Of course in most situations, employers would not require an employee on FMLA leave to immediately return to work following a close relative’s death. The employer’s bereavement or other leave policy would likely provide some period of time before the employee is expected to return. In some cases, employees may be able to convert the care leave to personal FMLA leave if the relative’s death results in their own diagnosed SHC based on depression, anxiety, etc. However, absent these protections, the FMLA alone will not provide job protected leave once the need to provide care ends.