FMLA Does Not Permit Employee to Take A Vacation with Seriously Ill Spouse Even If the Employee "Cares For" the Spouse During the Trip

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 this area.

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    

 

Comments

[Chris]

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.

[Carl]

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?

[kent]

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.