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July 12, 2005

Fetching a car is not FMLA-protected leave

The Family Medical Leave Act (FMLA) provides up to 12 weeks of unpaid leave to "care for" a family member with a serious health condition. So does that mean you actually have to "care for" the family member? The 9th Circuit says "Yes." Tellis v. Alaska Airlines (9th Cir 07/12/2005).

Charles Tellis' wife was having late-stage pregnancy difficulties. Then Charles' car broke down. Although he lived in Seattle, he had another car in Atlanta, so he flew there to drive the car back to Seattle. While he was gone he made several phone calls to his wife, and she gave birth.

Upon his return, Charles' employer discharged him for being absent without the required advance approval.

Charles claimed his absence was an FLMA-protected leave. The 9th Circuit disagreed.

According to Department of Labor regulations, "care for"

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.

Charles argued that retrieving the car gave his wife psychological support, and his phone calls provided moral support and psychological support.

The 9th Circuit said "care for" "involves some level of participation in ongoing treatment of [the family member's] condition." Said the court, "Instead of participating in his wife's ongoing treatment by staying with her, he left her for almost four days."

Posted July 12, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.

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