FMLA Roundup

The New Definition of “Child”;

Faith-Healing Pilgrimage not Covered;

Employee Gave Insufficient Notice;


1.        Although the U.S. Department of Labor acted last year on this point, what is a “son” or “daughter” was extended through a DOL interpretation letter on in loco parentis status, and the implications are not insubstantial.  Up until last year, the FMLA included not only a biological or adopted child, but a child of a person standing in loco parentis.  The regulations construe in loco parentis to mean day-to-day responsibilities to care for, and providing financial support.  But the interpretation letter says day-to-day care, or, providing financial support.  There are many situations – from same-sex unions to stepparents, in which a person provides day-to-day care alone, or financial support alone.  Although an interpretation letter does not have the effect of modifying regulations (much less the statute) it does reflect a view from the agency that is quite expansive.

            If you have concerns about whether an employee's relationship to a child is covered under the FMLA, you may ask the employee claiming FMLA child-care leave to provide reasonable documentation or a statement of the family relationship. The DOL has suggested that all that is required is a simple statement declaring the requisite family relationship.  Obviously this would apply where the employee has no legal or biological relationship to the child.  


2.        Maria Tayag worked for a hospital as a health management clerk.  Her spouse suffered from gout, chronic liver ailments, chronic kidney problems, and rheumatoid arthritis.  From 2003 to 2006 she took FMLA leave to care for him, and in June 2006 requested a seven-week vacation leave.   When her boss declined, she told him the leave was for her husband’s medical care. Thereafter Tayag’s husband’s physician wrote a certification letter to her employer, indicating that she needed seven weeks’ leave to accompany her spouse in his travels (in which he would be seeking special health care).  This certification included no further explanation why she had to have seven weeks off.  But the husband’s cardiologist submitted an FMLA certification that he was not presently incapacitated.  So the hospital denied the request for a seven-week leave.

            Tayag and her husband then traveled to the Philippines, where they attended various religious services and prayer services.  They went on a healing pilgrimage. But her husband received no medical treatment and saw no health care providers.  She administered medications, assisted him in walking, and carried his luggage. 

            In her federal court claim for an FMLA violation, Tayag argued that the seven-week trip was a series of “healing pilgrimages” with incidental socializing.  But the First Circuit Court of Appeals held that the time off was not “care” under the FMLA.   A “healing pilgrimage” is not medical care.  The hospital acted reasonably when it questioned the sufficiency of the first certification and sought the second opinion through the cardiologist’s certification.  Tayag v. Lahey Clinic Hosp. Inc., U.S. Court of Appeals, 1st Circuit 2011, No. 10-1169 (Decided January 27, 2011).


3.        In Righi v. SMC Corporation of America, U.S. Court of Appeals, Seventh Circuit, No. 09-1775 (Decided February 14, 2011), the court stressed that employees cannot keep their employers “in the dark about when they will return from leave,”  affirming a ruling that SMC had properly dismissed Righi for violating leave policy.

            Righi was away from his office at a seminar when he received word that his mother was seriously ill, and was passing into a diabetic coma.  One day later he e-mailed his supervisor advising that he needed the “next couple days off” to make arrangements for his mother’s care.  His e mail added that he had vacation time available and could apply for “the family care act, which I do not want to do at this time.”   He had no further contact with his supervisor until the day before he returned to work eight days later.  During this intervening time his boss tried unsuccessfully on fifteen separate occasions to reach Righi at his cell telephone.   Righi sued when he returned to work and was dismissed for failing to conform to SMC leave policy.

            Although the lower court had found that Righi waived his FMLA rights in his e mail, the appeals court ruled that he had left himself “at least some room to change his mind” about the use of FMLA leave.   But the court, applying the FMLA regulations in effect at the time he was let go, ruled that the statute placed an onus on Righi to notify SMC of the anticipated amount of time he would be out.  The old regulations pinned this down to “no more one or more working days of learning of the need for leave.”  Here, the plaintiff’s failure to respond to his boss’s calls (or otherwise contact the company) sunk his FMLA claim.

            We note that Righi’s case probably would not have fared any better under the modified regulations that went into effect in 2009, after his case arose.  The regulations also address the requirement of notice when there is an unforeseeable need for FMLA leave, and preserve the two-day maximum guideline.  29 CFR 825.302(b) states:  

 (b) As soon as practicable means as soon as both possible and practical, taking into account all of the facts and circumstances in the individual case. When an employee becomes aware of a need for FMLA leave less than 30 days in advance, it should be practicable for the employee to provide notice of the need for leave either the same day or the next business day. In all cases, however, the determination of when an employee could practicably provide notice must take into account the individual facts and circumstances [second emphasis added].