Most employers assume that an employee may not use FMLA to take a vacation. However, the line between a vacation, and time away for medical care, may not always be so clear.

An employee who tried to use FMLA leave to go on a “faith healing” trip for her ill spouse recently found herself on the wrong side of that line in Tayag v. Lahey Clinical Hospital, Inc., No 10-1169 (1st Cir., Jan. 27, 2011).

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In Tayag, the employer, Lahey Clinical Hospital, Inc., provided its employee, Maria Lucia Tayag, with intermittent FMLA from 2003 until July, 2006 to enable Ms. Tayag to provide care for her ill spouse. There was no dispute that her husband suffered from serious medical conditions, including gout, chronic liver and heart disease and kidney problems.

Ms. Tayag later sought to take a 7-week leave to go with her husband on a faith-healing pilgrimage to the Philippines. Her husband’s doctor submitted a note indicating that she needed the leave because her husband needed physical assistance on a regular basis. However, her husband’s cardiologist provided an FMLA certification indicating that Ms. Tayag’s husband was “presently . . . not incapacitated.”

Not surprisingly, Ms. Tayag’s employer denied her leave request and, when she failed to respond to her employer’s messages directing her to return to work (because she was on her trip), Ms. Tayag’s employment was terminated.

Ms. Tayag filed claims for interference and retaliation under the FMLA. Ms. Tayag argued that the faith-healing pilgrimage constituted medical care under the FMLA and that she was needed to care for her spouse while he received such medical care.

The court disagreed, finding that during her trip, Ms. Tayag and her husband prayed, went to Mass, spoke with others in the pilgrimage and visited other churches and family. No conventional medical treatment was provided. Ms. Tayag’s husband saw no doctors or healthcare providers on the trip and his own cardiologist said he was not incapacitated. The court found that FMLA leave to care for an immediate family member does not extend to vacations in which no medical care is provided.

Bottom line in this case: No medical care, no FMLA. But at least Ms. Tayag got a nice vacation.

This Blog should not be construed as legal advice or as pertaining to any particular factual scenarios.