Retrieving the Car is
not "Care For" a Family Member under the FMLA
Under
the federal Family Medical Leave Act (FMLA) and the state California Family
Rights Act (CFRA), an employee is entitled to take up to twelve (12) weeks
of unpaid leave to "care for" a family member with a serious
health condition. A recent Ninth Circuit decision held that an employee's
leaving on a cross-country trip to retrieve a car was not an FMLA protected
absence used to "care for" his pregnant wife. Tellis
v. Alaska Airlines, Inc., (9th Cir. 2005) 2005 U.S. App.
Lexis 13975.
Employee Embarked on Cross-Country Trip While Pregnant Wife at Home
Charles
Tellis was employed by Alaska Airlines in Seattle as a
maintenance mechanic. His wife was in the late-stages of her pregnancy and
was having difficulties, and he requested a couple of weeks off. His supervisor
suggested he take FMLA leave. Tellis did not show
up for his next scheduled shift but left a holiday and vacation leave
request in the benefits office for his n ext three scheduled days. He
requested FMLA forms which were sent to him. He did not report for his
scheduled shifts on July 5, 6, and 7.
On
July 6, Tellis's car broke down. He decided to
fly to Atlanta and retrieve another car that
he owned there and drive the car back to Seattle. He was gone until July 10. While
he was gone, his sister-in-law stayed with his wife and his wife gave birth
to a baby girl. He called his wife regularly from a cell phone while on the
road.
Tellis's next scheduled day was July 11. He
was absent without approval. Alaska
tried unsuccessfully to contact him. Alaska
decided to terminate him.
The
district court granted Alaska's
summary judgment motion on the ground that during Tellis's
FMLA leave, he did not
"care for" his wife.
"Care For" Requires Some Level of Participation in
On-Going Treatment
Tellis appealed claiming that his absence
was in fact a protected FMLA leave. He claimed that his cross-country trip
to get the car provided "psychological reassurance" to her so
that she would have reliable transportation and that his phone calls to her
provided moral support and psychological comfort.
The
Ninth Circuit disagreed holding that, as a matter of law, providing
"care for" a family member under the FMLA requires some
"actual care" which did not occur here.
According
to the Department of Labor regulations implementing the FMLA, 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, etc. 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.
Interpreting
these regulations and following existing precedent, the Ninth Circuit said
"care for" "involves some level of participation in ongoing
treatment of [the family member's] condition."
For
instance, in an earlier Ninth Circuit decision, the court held that a son
who moved to his father's town for a month to help him cope with depression
after the murder of his sister raised an issue of material fact sufficient
to defeat summary judgment on the issue of whether he cared for his father
under the FMLA. The son talked with the father daily about his sister's
death, helped with domestic chores, and drove his father to counseling. If
the son could prove that his activities and presence were needed for his
father's recovery, he would have a valid FMLA claim. Scamihorn
v. General Truck Drivers, 282 F.3d 1078 (9th Cir. 1999).
Employee Was Away From Wife
In
this instance, Tellis's activities could not be
considered "caring for" his wife. The court said, "Instead
of participating in his wife's ongoing treatment by staying with her, he
left her for almost four days." His trip to Atlanta was not to participate in her
medical care. While having a car that worked may have been reassuring to
his wife, "that was merely an indirect benefit of an otherwise
unprotected activity - - traveling away from the person needing care."
Moreover, the phone calls did not count as participation in ongoing
treatment.
Thus,
Tellis's absence was not protected by the FMLA,
and Alaska Airlines was entitled to summary judgment.
California Court
Would Reach Same Decision
California law also
holds that, in order to be protected under the CFRA, the assistance to the
family member must have some relationship to the family member's medical care.
In
Pang v. Beverly Hospital, Inc, 79 Cal.App. 4th 986 (2000), the court found that
time an employee spent moving her mother to a one story apartment from a
two story home to minimize the need for home assistance was not protected.
The state court said that the employee's own admissions made clear that she
was not there to directly or indirectly provide or participate in medical
care. The employee was there to help move. Again, while this provided some
reassurance, the comfort was a "collateral benefit" of activities
not protected by the CFRA.
Tips for Employers
- Employees who seek
leave to care for a family member should be required to provide a
certification from a health care provider that the serious health
condition warrants the participation of the employee to provide care
during a period of treatment of the family member.
- Accept the
certification from the health care provider. You are not entitled to a
second opinion even if you question the validity of the medical
certification for leave to care for a family member. You can only get
a second opinion if the leave is for the employee's own serious health
condition.
- Remember that if
you voluntarily provide sick leave, you must allow employees to use up
to one-half of their sick leave to care for a sick child, parent,
spouse, registered domestic partner or the child of a registered
domestic partner.
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