The FMLA Blog

Employee Must Be in Close Physical Proximity to Ill Family Member to Satisfy FMLA "To Care For" Requirement

Girard Baham requested and was granted FMLA leave to care for his daughter, who fell and suffered a serious head injury while the family was on vacation. The daughter was airlifted from Honduras to Miami, where the family remained in the hospital while their daughter recovered.  

Baham was on provisionally approved FMLA leave from March 20 through May 5, 2008.  From April 12 through April 29, however, Baham returned to their home in Texas in response to neighborhood association letters complaining of an untended yard.  He also cleaned up the house, and added padding to sharp edges in the home to protect his daughter upon her return.  Baham's wife remained in Florida while caring for their daughter.  Baham talked with his wife by telephone every day.  Baham did not, however, inform his employer of his returned to Texas. 

On his return, Baham was informed that his FMLA paperwork was incomplete, and he was asked to provide the missing information.  Baham let work later that day, leaving his keys and ID card with the security guard. The employer interpreted this act as a resignation, and sent a letter confirming his termination a few days later.  Baham sued, alleging that his termination violated the FMLA.  The federal trial court dismissed the suit, finding that Baham failed to establish that he "cared" for his daughter within the meaning of the FMLA while he was in Texas.  Baham appealed the case to the Fifth Circuit.

To be entitled to FMLA leave, an employee must show that he is needed "to care for" a family member with a serious health condition.  29 USC 2612(a)(1)(C).  In addition to providing physical care, the employee is entitled to leave in order to provide psychological comfort and reassurance which would be beneficial to his or her child or to make arrangements for changes in care such as transfer to a nursing home.  29 CFR 825.116(a). 

Baham argued that he was entitled to FMLA leave while he was in Texas away from his daughter based on frequent telephone contact wit his wife, who was caring for their daughter.  The Fifth Circuit disagreed.  Following the lead of the Ninth Circuit in Telllis v. Alaska Airlines, Inc., 414 F.3d 1045, 1047 (9th Cir. 2005), the Fifth Circuit found that the "to care for" requirement required the employee to provide "some actual care" while in "close and continuing proximity to the ill family member."  While Baham was in Texas he was not in close continuing proximity to his daughter.  The Court also opined that cutting the lawn, cleaning the house, and preparing the house by padding furniture, did not qualify as "care" under the FMLA.  The Court noted that it found no authority holding that merely remaining in frequent telephone contact with a relative while in another state for weeks constitutes providing care for purposes of the FMLA. 

 The Fifth Circuit afformed the judgment of the district court dismissing Bagahms FMLA claim.

Comment:  The Fifth Circuit joined the Ninth Circuit in imposing a requirement that "caring for" an ill family member requires the provision of some actual care in close and continuing proximity to the ill family member.  With respect to the "actual care" requirement, the decision is not surprising in that Baham's telephone contacts were with his wife, not his daughter or his daughter's physicians.  The situation would doubtless have been different had he been consulting with his wife and doctors about treatment options for his daughter. That activity would likely be viewed as providing "some actual care."  Cutting the lawn, and cleaning and preparing the house for the daughter's return home was apparently too attenuated from "physical or psychological care" to fall within the protections of the FMLA, at least for the Fifth Circuit.

Interestingly, neither the Statute nor the DOL FMLA regulations specifically impose a "close and continuing proximity" requirement for an employee to "care for" an ill family member.  Query whether in a world of real-time internet video/audio access to the daughter's hospital room whether an employee could not provide psychological care remotely.  With the right facts, I believe the court-manufactured "close and continuing proximity" care requirement will fall as a relic of a past age in light of the new technological reality.            

 Baham v. McLane Foodservice, Inc., No. 10-10944 (5th Cir. July 1, 2011)  http://www.ca5.uscourts.gov/opinions/unpub/10/10-10944.0.wpd.pdf

 

 

 

"Caring For" Mother with Serious Health Condition Did Not Cover Absence to Clean Mom's Flooded Basement

Joe Lane requested and was granted six months of intermittent FMLA leave to "care for " his mother, who suffered from diabetes, high blood pressure, weight loss, and arthritis.  The medical certification he provided established that Lane would use the leave to assist his mother with meals and take her to doctors appointments, which he did without incident for approximately four months.  Lane was absent four consecutive days beginning July 23, 2008.  In violation of company policy, he did not call in his absences.  When contacted, Lane explained that he took the last three consecutive days off because of flooding in the basement of his mother's home where he was staying.  The company fired Lane. 

Lane sued, alleging that his termination interfered with his FMLA rights as he should have been granted FMLA leave for the three-day period to clean up the flooded basement.  He argued that he needed to clean up the basement because the sitting water was a breeding ground for disease that would aggravate his mother's hepatitis.  An immediate problem was Lane's concession that he had not previously informed the company that his mother suffered from hepatitis.   The company moved for summary judgment, arguing that the absence to clean up the flooded basement was was not covered by the FMLA.  The court agreed with the company.

The court initially noted that the absence to clean up the flooded basement fell outside the parameters of his approved certification for FMLA leave to provide his mother meals and take her to doctor's appointments.  The court further noted that Lane had failed to offer evidence establishing that cleaning his mother's flooded basement fell with the FMLA's definition of "needed to care for" a covered family member due to a serious health condition.  He did not offer evidence to back up his claim that his mother suffered from hepatitis, how such a condition constituted a "serious health condition" within the meaning of the FMLA, or how his mother's hepatitis was in danger of being aggravated if Lane did not immediately clean the flooding.  Nor did he establish how cleaning the flooded basement fell within the requirement that physical or psychological care address the basic medical, hygienic, nutritional or safety needs of his mother.  29 CFR 825.124(a).  Finally, the court found that alerting his employer (after-the-fact) that he needed leave to clean his mother's flooded basement failed to place the employer on notice that the employee may have been seeking FMLA leave.

Lane v. Pontiac Osteopathic Hospital, Case No. 09-12634 (E.D. Mich. June 21, 2010). 

http://scholar.google.com/scholar_case?case=16361142005570212643&hl=en&as_sdt=2&as_vis=1&oi=scholarr

Comment: The decision demonstrates that, while broad, the "caring for" component of FMLA leave is not unlimited.  Note the court's interest in the absence of evidence establishing how cleaning the flooded basement "cared for" the mother's condition.  Courts have generally favored activities that directly provide care to the seriously ill family member over those, such as in this case, that may only indirectly provide physical or psychological care.  Arguably, by cleaning up the mess himself, Lane may have relieved his mother from performing an activity that, with arthritis, she could not perform easily, if at all.  He may have also provided her psychological care by relieving her of this responsibility.  Sitting water may have presented safety issues as well.  Apparently, these arguments were not sufficiently developed for the court.

One could argue that the court's interpretation of "caring for" is overly restrictive.  For example, Lane goes over to his mother's home to make her a meal.  In addition to providing her with physical care (the meal), he is providing her with psychological care by being with her.  While his mother eats he goes down into the basement for something.  In so doing, has he lost FMLA protection because he momentarily left the room where his mother is eating?   Is physical and psychological care so limited?  If Lane made lunch and, while his mother was eating, he slipped out of the house to get the mail from the mailbox at the curb, can he be fired for exceeding his medical certification?   What if Lane was taking care of his mother a great distance from where he lived and worked and could not get back to work easily.  Do FMLA protections turn on and off like a light switch depending on whether Lane is in the room with his mother?   Is that what the FMLA is all about?   

At the end of the day, Lane's failure to call-in his absence for four consecutive days without a credible explanation likely doomed his FMLA case.  

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    

 

"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.