In McGinnis v. Employer Health Services, Inc., No. 05-2219-JTM, 2006 U.S. Dist. LEXIS 35831 (d.Kan. May 31, 2006), the court found that a stepmother’s presence at the hospital during the cancer treatment of her stepdaughter constituted a basis for finding that the employee provided psychological “care” as defined by the DOL regulations. The court also found that the employee’s presence at the hospital to fill in for the biological parents also satisfied the ‘to care for” requirement for FMLA leave. In so finding, the court rejected the employer’s arguments regarding the extent and qualify of the care provided by the employee.
Comment: The “requirement that an employee is needed “to care for” a covered family member due to a serious health condition includes the provision of psychological care. Where there is evidence that the ill covered family member is aware of the employee’s presence during hospital treatment the courts have found that the employee satisfies the “psychological care” requirement.