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February 04, 2010



I agree that this is a confusing decision by 9th Cir. I am inclined to believe that:

1. during the 40% family visit time, the wife's need to give physical and psychological care greatly reduced due to the presence of many other family members who can/are providing those cares

2. Tayag still has some duty to the company and her job, so when she discloses to her employer that 2/5 of her trip is for personal purposes, rather than medical or psychological comforts of the husband who had the serious health condition, both the employer and then ultimately the court dropped the axe on the claim that the time was protected under FMLA. Most of the time probably WAS valid time, but there was enough time determined to be questionable/invalid time away from her job, and it became an attendance issue.

Perhaps the Tayags should have just said, we are taking a 7-week trip that will be spent solely focusing on psychological comforts and healing after surgery...PERIOD. Leave out the "oh yeah, we'll be visiting half the time with family, too" thing. The employer was not going to travel to the Phillippeans to double-check that. Then they could have manipulated the law to include their vacation as well.


I think it is interesting that the court punted on whether FMLA leave is available for an employee to care for a seriously ill covered family member to facilitate that individual's receipt of non-medical psychological benefits from another.

I also think the case is interesting because of its reference to the percentage of time an employee spent on vacation activities versus caring activities. If the court wanted to state- never FMLA leave to accompany a seriously ill family member - it could have simply stated so. The reference to percentages leaves open the slight possibility that a different percentage mix of vacation versus caring for activities might change the result.

Gradilla, as I recall, leaned on the language in former 825.116 that "The term [needed to care for] also includes providing psychological comfort and reassurance which would be beneficial to a child, spouse or parent with a serious health condition WHO IS RECEIVING INPATIENT OR HOME CARE."

I don't believe that relying on that language to exclude an employee's ability to provide other than inpatient or home care is correct. The referenced language is cited as examples only ("includes"). Like you, I do not understand why the courts are inclined to require inpatient or home care as part of the "needed to care for" requirement given that a serious health condition under the FMLA does not require that the ill individual be bedridden.

The home care requirement raises obvious issues where the parent, for example, who is dying elects to go on a last cruise. Is the cruise ship their home? What if the parent sold their home before the cruise? Does it have to be the parents home? What about a friend's home? What about an undeeded two-week time share -is that a home for the 2 weeks, or does it have to be for a longer period? How about a campground in Yosemite- can that be someone's home? It seems arbitrary to me why the ownership status of a location should dictate whether FMLA leave is approved.

The above, however, is not to suggest that an employee's asking for 6 weeks of leave during a critical period for the employer to "care for" their aging parent on an all expense paid cruise to the French Riviera has some fairly obvious optical problems. It just does not look good. On the other hand, if the parent has a serious health condition and actually needs someone to administer medication, push them in a wheel chair, and provide psychological comfort and support, what difference does it make where that takes place?


the court identified FMLA leave for a relative's faith-healing was "the novel issue in dispute" and acknowledged (but seemed reluctant to adopt) the employer's argument that a faith-healer wasn't an FMLA health care provider.

even so, the court ignored these issues and instead chose to exclude vacationing as an activity for which an employee might be needed to provide care for a relative and thus be eligible for FMLA.

why providing "care" isn't permissible for a traveling/vacationing relative isn't clear; the underlying 9th Cir. case Gradilla v. Ruskin generated a dissent that called the requirement that travel-be-for-medical-reasons-only a "limitation conjured up by the majority" and an "uncharitable reading" of the law.

is it simply judicial hostility to an employee getting FMLA family leave for anything other than hovering over a sickbed? while caring for a spouse visiting the doctor is specifically authorized by the regulations, it's not a limitation that requires medical treatments for all family care leaves.

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