The FMLA Blog

"Checking On" Son Several Times During Day Did Not Qualify as Providing Physical or Pschological Care

In Brehmer v. Excel Energy, Inc., No. 06-3294 (JNE/JJG), 2008 U.S. Dist. LEXIS 59130 (D. Minn. Aug. 4, 2008),the court found that the employee did not qualify for FMLA leave "to care for" Cody, his girlfriend's eleven-year old son, during her hospitalization for surgery.  Cody allegedly suffered from ADHD and Tourette Syndrome, which Brehmer claimed constituted an FMLA-covered serious health condition.   

On the day in question, Cody was left in the care of his girlfriend's sister and a male tenant who rented the basement of his girlfriend's home.  Brehmer alternated his time between the hospital and his girlfriend's home.  He testified that he returned to the home several times during the day to "check on" Cody.  The court observed:

While Brehmer's actions toward Cody and his concern for Cody may be laudable, they do not qualify under the broadest reading of the statute as physical or psychological are under the FMLA. The FMLA does not protect mere visitation.      

Because Brehmer did not care for Cody on the day in question, he could not establish that his absence from work that day was protected by the FMLA.  The court awarded summary judgment in favor of Excel Energy dismissing Brehmer's FMLA lawsuit.

Comment:  In order to fall within the protections of the FMLA for leave "to care for" a covered family member with a serious health condition, the employee must provide physical or psychological care to the family member.  Without more, simply visiting the family member with a serious health condition is not enough.  While the FMLA does not dictate the level of physical or psychological care, there has to be some evidence that care was in fact provided.   

Another interesting aspect of the case is that it addressed an in loco parentis relationship.  Persons who are in loco parentis include those with day-to-day responsibilities to care for and financially support a child.  29 CFR 825.113(c)(3).  A biological or legal relationship is not required.  The DOL regulation does not detail what "day-to-day" activities would support an in loco parentis relationship, and how long those activities must be performed.  Nor do the regulations indicate the quantum of financial responsibility for the child the employee must assume.   

In Brehmer, the court found, at least for purposes of summary judgment, that Brehmer may have held an in loco parentis relationship with Cody.  The court credited Brehmer's affidavit that, for the past several months,  he contributed more than half of Cody's financially support, and that he cared for Cody as if he were his son, including helping him eat, dress, go to bed, took him to doctor's appointments, attended his softball games, and went to Cody's school when Cody had problems there.  The court did not find that these activities established an in loco parentis relationship, only that they might- which was sufficient to defeat summary judgment for the employer on this point.     

The court also went on to find that the record evidence did not support the claim that Cody had a serious health condition within the meaning of the FMLA.  Apparently the only evidence offered was Brehmer's own statement, which the court found insufficient.  The court, like most courts, wanted medical evidence of Cody's condition to determine if it was a "serious health condition" within the meaning of the FMLA.

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.

The decision effectively moves the line in this area of the law. Before Bell, courts interpreted "to care for" as requiring both physical proximity of the care giver to the recipient, and awareness by the recipient of the psychological care being provided.  In Bell, the court did away with the awareness by the recipient requirement.  Physical proximity is still required. 

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.

    

Four Telephone Calls Did Not Establish that Employee Was "Needed to Care For" Her Son for the Entire Day

Mindy Marx had approved dependent care intermittent FMLA leave for her son Ryan, who suffers from attention deficit hyperactivity disorder.  At all times relevant to her complaint Marx had received a 10-Point Final Letter pursuant to Whirlpool's Attendance Policy for unexcused, non-FMLA absences.  Another non-FMLA absence and she would be terminated.  On Friday, August 13, 2004, Marx was scheduled to work.  She was observed stopping by the plant with another employee on two separate occasions over the course of a few hours to pick up her pay check.  She did not appear to be working as scheduled.  The employer was aware that Marx had approved intermittent dependent care FMLA leave for her son.  Ryan was not with Marx on the two occasions she was observed at the plant. 

On her return to work the following Monday, Marx requested FMLA leave for Friday.  She claimed that the leave was qualifying because she made four telephone calls in the morning to arrange for a change in the care of her son.  Marx admitted that the four telephone calls were the only thing she did related to Ryan's change in care on August 13, 2004.  She spent the remainder of  her shift picking up her paycheck, visiting her father's house, cashing the paycheck, and caring for her youngest son, River. 

The Court noted that the FMLA permits an employee to take leave where an employee is "needed to care for" a family member.  The FMLA defines "needed to care for" to compass both physical and psychological care.  The terms also includes situations "where the employee may be needed to ...make arrangements for changes in care..."  29 CFR 825.116(b).

Here, the court found that Marx failed to establish that she was "needed to care for" her son such that she was excused for the entire day.  The court rejected Marx's claim that the four telephone calls she made in the morning justified her absence from work for the entire day.  The Court observed:

There was thus no imminent reason or emergency that required Plaintiff to specifically take off work or even make these alleged telephone calls on august 13, 2004. 

Comment:  The Court appears to be saying that Marx, who had approved intermittent FMLA leave at the time, is not entitled to take an entire day off from work where the actual time needed for the FMLA covered leave, in this case to make a few telephone calls to make changes in dependent care coverage, was for a period substantially less than a full work day. 

Marx v. Whirlpool Corp., No. 3:05-cv-108 RLY-WGH, 2006 U.S. Dist. LEXIS 86727 (S.D.Ind. Nov. 28, 2006)

Presence at Hospital During Treatment Established Employee Needed to Provide Psychological Care

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.