Psychological Care to Unconscious Parent Protected by FMLA

Whether the FMLA covers an employee's need for leave to provide psychological comfort and care to an unconscious parent was addressed in Bell v. Prefix, Inc., No. 05-74311, 2007 U.S. Dist. LEXIS 52837 (E.D. Mich. July 23, 2007).  There, Bell's father fell after suffering an aortic aneurism.  He was granted FMLA leave to attend to his father's health care and hospitalization.  Bell left work early to be with his father the night before surgery.  He discussed the surgery with his father.  He returned to visit his father after the surgery.  His father fell into a coma after the surgery.  He remained in the coma until his death a few weeks later.  On several occasions, Bell was granted FMLA leave to visit his father.  His father was at all times incoherent and unable to visibly react to Bell's words.  During these visits, Bell would discuss his father's condition and care with hospital staff, including approval of care.  Bell was subsequently terminated allegedly due to a downsizing of his department.  He sued, alleging that his dismissal was due to his use of FMLA leave. 

Prefix argued that Bell's leave was not protected by the FMLA.  It argued that he did not provide physical or psychological care because his father was comatose.  Under established case law, merely visiting a sick parent does not, the employer argued, constitute providing care within the meaning of the FMLA. The court disagreed.

The time Bell spent with his father was psychological care.  The court rejected the argument that the failure of a parent to visibly respond demonstrates that psychological care was not given during their post-surgery interactions.  "Taken to its logical conclusion, Defendant's argument would leave the FMLA without an allowance for psychological care if the loved one was unable to visibly react to it."  The court also noted that Bell did provide psychological care to his father before surgery when his father was conscious. It also noted that he participated in medical decisions for his father post-surgery, which is also covered by the FMLA.  Addressing post-surgery psychological care, the court observed:

Although Defendant may question the quality of of that interaction because of Plaintiff's father's inability to interact ... it is clear that Plaintiff was attending to his father's psychological needs.

Comment: Under existing case law, merely visiting a sick family member did not constitute physical or psychological care within the meaning of the FMLA.  The employer argued that, absent the ability to interact because the parent was in a coma, Bell could not provide psychological care within the meaning of the FMLA. As such, his absences were merely unprotected "visits." The court found that the ability of the recipient of the psychological care to visibly interact or respond to the care given was not required for FMLA protections.

Another way to look at the case is to view Bell's interaction with his father in its totality.  There is no question that Bell provided psychological care prior to surgery when his father was conscious.  Nor is there any doubt that he engaged in caring activities when he made post-surgery care decisions with hospital staff.  Given that context, perhaps the court was saying that the time Bell spent talking to his comatose father was also "care" protected by the FMLA.