What Does “To Care For” Mean Under the FMLA?

Darrell VanDeusen
Darrell VanDeusen
09/13/2011

The FMLA provides that an employee may take leave to care for a parent, spouse, son or daughter who has a serious health condition.  29 U.S.C. § 2612(a)(1)(c).  An employee can take leave to care for a parent or spouse of any age who, because of a serious mental or physical condition, is in a hospital or other health care facility, or who is at home but unable to care for his or her own basic hygienic or nutritional needs or safety.  So, no question, an employee gets protected leave to deal with a parent or spouse whose daily living activities are impaired by such conditions as Alzheimer’s disease, stroke, or clinical depression or who is recovering from major surgery or who is in the final stages of a terminal illness.

Only infrequently have courts considered where and how the leave needs to be taken.  Some cases are pretty clear.  Courts have found that “caring for” a family member includes an employee who is directly involved in providing psychological support for a spouse or parent.  See, e.g., Scamihorn v. General Truck Drivers, 282 F.3d 1078, 1087 (9th Cir. 2002) (plaintiff drove his father to counseling sessions, spoke with his father about his father’s grief, and may have been necessary to help his father meet basic needs).  But there has to be some one-on-one time involved.

In Tellis v. Alaska Airlines, Inc., 414 F.3d 1045, 1047 (9th Cir. 2005), the Ninth Circuit held that an employee who made regular telephone calls to his pregnant wife while he made a three day driving trip alone to bring her a more reliable car could not be considered “caring for” her under the FMLA.  Tellis argued that he “cared for” his wife within the meaning of the FMLA “because his trip to Atlanta and back to retrieve the family car provided psychological reassurance to her that she would soon have reliable transportation, and his phone calls to her while he drove back to Seattle provided moral support and psychological comfort.”  The Ninth Circuit disagreed, holding that, as a matter of law, “providing care to a family member under the FMLA requires some actual care which did not occur here.”  The court distinguished those cases where a question of fact was raised about the level of actual care given by finding that at least some face to face care was given in each of those cases.

What about the employee who travels with her spouse who has a serious health condition?  There had better be medical evidence that the trip was necessary for medical treatment for the serious health condition and that most of the time spent on the trip was for that purpose.  In Tayag v. Lahey Clinic Hosp., Inc., 2011 U.S. App. LEXIS 1697 (1st Cir. 2011), the Third Circuit affirmed summary judgment to an employer who terminated an employee who had accompanied her seriously ill husband to the Philippines, where he sought faith-healing.  There was no violation of the FMLA, because nearly one-half of the trip was spent visiting friends and family.  The court was skeptical of the whole “faith healing” component — at no point during the entire trip did Mr. Tayag receive medical treatment or visit a health care professional.  See also, Marchisheck v. San Mateo County, 199 F.3d 1068 (9th Cir. 1999) (where the court held that a mother’s claim that she needed to “care for” her son by moving him from California to the Philippines in order to remove him from a physically dangerous environment was not FMLA protected, because the son did not see a doctor after moving to the Philippines, and merely taking the son to a foreign country did not amount to “caring for” within the meaning of the FMLA).

Faith healing is addressed in section 825.118 of the DOL regulations, identifying others “capable of providing health care services,” to “Christian Science practitioners.”  29 C.F.R.  § 825.118.  Christian Scientists reject ordinary medical care as defined by the statute and so, as to a Christian Scientist patient, there is no duplication either for government insurance programs or for employers providing FMLA leave.  Tayag did not claim that her husband’s religion forbid ordinary medical care, and she had already taken FMLA leave a number of times to assist him in connection with receiving such care.

The Child Who is 18 or Older. 

The FMLA does not generally provide leave for an employee who wants to take leave to care for a child who is 18 years old or older.  Section 2611(12) of the Act provides that “Son or Daughter” means a biological, adopted, foster or step-child, a legal ward or child of a person standing in loco parentis, as long as the child is under eighteen years old, or over eighteen and “incapable of self-care because of a mental or physical disability.” 29 U.S.C. § 2611(12).

The FMLA’s regulations (29 C.F.R. § 825.122(c)) provide that a “physical or mental disability” means a physical or mental impairment “that substantially limits one or more of the major life activities of an individual,” as defined in the regulations implementing the Americans with Disabilities Act (ADA).  See 29 CFR Part 1630.2(h), (i), and (j), issued by the EEOC for further definition of these terms.  “Incapable of self-care” means that the individual requires active assistance or supervision to provide daily self-care in several of the “activities of daily living” (ADLs) or “instrumental activities of daily living” (IADLs).  Activities of daily living include adaptive activities such as caring appropriately for one’s grooming and hygiene, bathing, dressing and eating.  Instrumental activities of daily living include, by way of example, cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, or using a post office.

But have things changed with passage of the Americans with Disabilities Act Amendments Act?  The EEOC’s regulations interpreting the ADAAA provides a list of impairments that now “consistently” meet the definition of disability because of characteristics connected with associated impairments, including deafness, blindness, intellectual disability (formerly termed mental retardation), partially or completely missing limbs, mobility impairments that require the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV or AIDS, multiple sclerosis, muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder and schizophrenia.  This is a major change from prior law and regulations, which required an individualized assessment of the impact of the impairment on the individual.  Most certainly, any of these conditions will be found to be a “serious health condition” for an employee or an employee’s family member.

So, does this mean that an employee whose adult son or daughter has any of these ADAAA impairments regardless of their impact on the individual will be deemed to be incapable of self-care?   In Patton v. Ecardio Diagnostics, LLC, 793 F. Supp. 2d 964 (S.D. Tex 2011) the court denied the employer’s motion for summary judgment where an employee was fired after taking leave to care for her 18 year old daughter who had been in a car accident that killed the driver.  The daughter had two broken femurs, a small hole in her lung and a small hole in her bladder.  The employer argued that, before the accident, the daughter did not suffer from a physical disability that rendered her unable to care for herself and, therefore, the leave was not protected FMLA leave.  The court disagreed, finding that when Patton needed to care for her daughter, she most definitely was not capable of self-care.  See also, Navarro v. Pfizer Corp., 261 F.3d 90, 96 (1st Cir. 2001)(“the crucial moment for determining if a particular condition qualifies as a disability for FMLA purposes is the time that leave is requested or taken.”).

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