Of all the statutes impacting employers, the Family Medical Leave Act (FMLA) may be the one that causes the most frustration. Every FMLA situation is like a pop quiz, challenging employers with a variety of questions that must be answered before deciding on the proper course of action. Am I a covered employer? Is the employee an eligible employee? Is the condition a serious health condition? If the condition is not the employee’s, is it that of a spouse, parent, or child of the employee, or of a covered servicemember, as those terms are defined by the FMLA? Does the employee have any leave time left?
Assuming all of the above answers point to FMLA applicability, there is still one more question to answer if the employee is seeking leave to care for a family member with a serious health condition. Specifically, what does it mean that an employee is “needed to care for” a family member? The federal Department of Labor’s regulations implementing the FMLA attempt to provide some guidance. Those regulations state that being needed to care for a family member “encompasses both physical and psychological care. It includes situations where, for example, because of a serious health condition, the family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor. The term 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.” 29 C.F.R. § 825.124(a).
Providing “psychological comfort and reassurance” to a family member with a serious health condition may seem boundless. And, indeed, some cases seem to stretch the limits of what it means to “care for” a family member. For example, in Scamihorn v. Gen. Truck Drivers, 7 WH Cases2d 1172 (9th Cir. 2002), the United States Court of Appeals for the Ninth Circuit (which includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington) held that a son who took FMLA leave to care for his father who was diagnosed with depression after the death of his daughter (the employee’s sister) “cared for” the father when he performed daily chores such as shoveling snow, chopping wood, and clearing the yard. The court relied upon the fact that the son was a “constant presence” in his father’s life, was available to speak with his father regarding his sister, and occasionally drove his father to appointments.
Earlier this year, however, the United States District Court for the Eastern District of Michigan found that there are limits to the meaning of providing “psychological comfort and reassurance.” In Alsoofi v. Thyssenkrupp Materials NA, Inc., 16 WH Cases2d 180 (E.D. Mich. 2010), an employee requested FMLA leave to care for his ill mother. His youngest sister usually cared for his mother, but his sister was scheduled to be married in Yemen during the requested time frame and would be unavailable to care for their mother during that time. The employee’s brother was scheduled to travel with their sister for the wedding, because, according to their customs, she was required to travel with a male family member.
Just before the employee’s brother and sister were scheduled to leave for Yemen, the brother had to undergo emergency back surgery. He could not travel, so the employee took his place in accompanying their sister to Yemen for the wedding. Another sister took care of their mother.
Some of the employee’s co-workers told the employer where the employee had gone. When the employee returned to work several weeks later, the employer asked him where he was during his leave. He initially lied, but later admitted that he was in Yemen. The employer discharged the employee “because he obtained his leave of absence for fraudulent reasons.” The employee then filed a lawsuit, alleging that his employer discharged him in violation of the FMLA. Specifically, the employee alleged that his employer discharged him in retaliation for exercising his rights under the FMLA, and interfered with his exercise of FMLA rights.
The employee made two primary arguments. First, he argued that by traveling to Yemen with his sister and ensuring that she adhered to their customs, he was providing psychological support for his mother. Second, citing a Department of Labor regulation providing that caring for a family member includes situations “where the employee may be needed to substitute for others who normally care for the family member,” he argued that he “substituted” for his brother and that such a substitution is recognized as proper by the FMLA.
In addressing the employee’s first argument, the court distinguished the facts of this case from the facts in the Scamihorn case. Unlike the son in Scamihorn, the employee here was “half a world away” from his mother. He did not participate in any conversations regarding her medical treatment, and he was not a constant presence in her life. The employee’s travel here, while legitimate, was for non-medical reasons. While his travel may have provided some degree of psychological comfort to his mother, that was not the primary purpose of the travel, but merely a “collateral benefit.”
The court dismissed the employee’s second argument by noting that he was substituting for his brother, who was not a caregiver for their mother but instead was tasked with accompanying their sister to Yemen. However, there is some reason to believe the outcome may have been different if the employee traveled to Yemen so the brother could stay home with their mother. In Briones v. Genuine Parts Co., 8 WH Cases2d 153 (E.D. La. 2002), the court found that a father who sought leave to care for three healthy children while his wife took care of their seriously ill son was entitled to FMLA leave. According to the court, the father “would have been entitled to FMLA leave had he been at the hospital caring for [their sick son] himself instead of using leave to facilitate [his wife’s] fulfilling that role.”
Based upon the fact that the primary purpose of the travel was not to benefit the mother, and that the employee did not “substitute” for the sibling who was going to provide daily care for the mother, the court dismissed the employee’s FMLA claims. In doing so, it provided guidance on questions to ask in examining claims that an employee needs leave to care for a family member. First, what type of care will the employee be providing – physical or psychological? Second, to whom will the care be provided – the family member with the serious health condition, or someone else? Third, will the employee be in close proximity and regular contact with the family member, or physically removed from him/her? Lastly, will the employee be providing “substitute services” so someone else can provide care to the family member? As with all cases involving FMLA leave requests, before denying a request or discharging an employee for submitting a fraudulent request, it is advisable to seek legal counsel.