Maria Tayag requested 7 weeks of FMLA leave to care for her seriously ill husband after surgery. She had previously taken FMLA leave for her husband/s condition. Tayag provided medical documentation substantiating her need for the requested FMLA leave, including time to accompany her husband on any trips to provide necessary physical assistance. The Company notified Tayag that the medical documentation was incomplete, and requested additional information. Believing that she had provided sufficient information, Tayag declined to provide additional medical information. She and her husband thereafter left for the Philippines, their native country, to visit a Catholic priest renowned for his ability to heal the sick. The Tayags spent approximately 60% of their time in the Philippines participating in a faith healing pilgrimage at the Catholic church. The remainder of the time was spent visiting family and friends. Because of his serious ailments, Mr. Tayag is unable to travel without his wife, who carries his bags, pushes his wheelchair, gives him medication, and provides psychological support. At not time during the trip did Mr. Tayag receive medical treatment or visit a health care professional. The Employer terminated Ms. Tayag for her unexcused absence. She sued alleging that her termination violated the FMLA. Tayag and the employer moved for summary judgment.
The District Court observed that it "is far from clear that caring for a seriously ill spouse on a trip for non-medical religious purposes is protected activity under the FMLA." The Court noted Ninth Circuit decisions holding that the leave is unprotected where the reason for the travel was not to receive medical treatment. Even assuming, arguendo, that such is the case, the District Court went on to find that Tayag's trip was not protected because nearly half of it was spent visiting friends and family, not in faith healing activities that Tayag claimed provided psychological benefits to her ill husband. The fact that Tayag provided physical and psychological care to her husband was, the Court found, incidental to the taking of a vacation, which is not protected by the FMLA. The Court awarded summary judgment to the employer dismissing the FMLA claim.
Comment: Note that the District Court did not fully embrace the position of the Ninth Circuit limiting FMLA"to care for" coverage to the situation where the employee is traveling with the ill family member solely to receive medical care. In an apparent attempt to stake out a middle ground, the Court appears to take the position that the primary or predominate reason for the travel must be to receive medical treatment, which the Court broadly construed to include actual participation in psychologically beneficial non-medical treatment (e.g., faith healing observances). Because, however, the Tayags' spent 40% of their time visiting family and friends, the Court found that the trip was not primarily involved with the receipt of actual physical and psychological treatment and, therefore, was not protected by the FMLA.
The decision is confusing. By its plain terms, it finds that 40% of something (time spent with family and friends) is incidental to the 60% of the time spent participating in the receipt of actual, albeit non-medical, psychologically beneficial activities. Setting aside the definitional confusion, perhaps the Court is merely saying that time spent receiving the claimed beneficial treatment, physical or psychological, must be greater than 60%, although it need not be 100% (as the Ninth Circuit cases seem to require).
Perhaps it was not argued, but the Court does not address why seeing family and friends is not at least as psychologically beneficial as participating in faith healing rituals. Nor does the Court include in the calculation the time Ms. Tayag actually spent providing physical or psychological care. She operated his wheelchair throughout, periodically gave him medication, and otherwise was providing psychological care to him the entire time. The ultimate problem I have with the decision is that it appears to value the psychological care provided during faith healing exercises over the psychological care provided at all times by Ms. Tayag. Such a distinction does not exist in the FMLA.
The decision has a worthwhile discussion of "needed
to care for" where the employee requests to travel with the seriously
ill family member. Courts will undoubtedly continue to struggle in
Tayag v. Lahey Clinic Hospital, Inc., No. 08-10727-PBS (D. Mass. Jan. 6, 2010). http://pacer.mad.uscourts.gov/dc/cgi-bin/recentops.pl?filename=saris/pdf/tayag.pdf