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Topic: "FMLA" | Main

FMLA self-care provision is not enforceable against states - Coleman v. Maryland Court of Appeals
March 24, 2012 by Ross Runkel at LawMemo

During my days as a full time law prof teaching constitutional law and employment discrimination this question came up annually:

Exactly what is the extent of Congress' power under Section 5 of the 14th amendment? "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

There were always two potential extreme answers:

1. The power is limited to regulating conduct that itself violates the 14th amendment.

2. The power is expansive, much like the necessary and proper clause.

Law students typically wanted to know the rule that the Court would apply in every case. Something simple. Something predictable.

I always told them that there are nine Justices, and one must understand how each individual Justice sees things, and then count up the votes.

As time went by, most of the Justices adopted the view that Congress could go beyond regulating conduct that itself violates the 14th amendment, provided that there was "congruence and proportionality" between the injury to be prevented or remedied and the means adopted to that end. This, of course, gave the Justices huge individual leeway to determine what was congruent and what was proportional. Not simple. Not predictable.

And so it was with Coleman v. Maryland Court of Appeals (US Supreme Ct 03/20/2012) with the Court splitting up into three opinions: 4-1-4.

Coleman sued his employer, an instrumentality of the State of Maryland, claiming a violation of the Family Medical Leave Act (FMLA) by denying him self-care leave. The Federal District Court dismissed the suit; the 4th Circuit affirmed. The US Supreme Court affirmed (4-1-4).

Four Justices said that in order for Congress to abrogate the states' immunity through the use of Section 5 of the 14th amendment, there must be "a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end ." In Nevada Dept of Human Resources v. Hibbs, 538 US 721 (2003), the Court upheld the portion of the FMLA that provides leave for the care of a spouse, son, daughter, or parent with a serious medical condition. However, the sex-based discrimination identified in the Hibbs case is absent with regard to the self-care provision. There is a lack of congruence and proportionality. The plurality rejected arguments that the self-care provision addresses sex discrimination and sex stereotyping, that it is a necessary adjunct to the family-care provision upheld in Hibbs, and that it helps single parents keep their jobs when they get ill.

Justice Scalia rejected the "congruence and proportionality" approach, saying that (outside of race discrimination) Congress' power under Section 5 of the 14th amendment is limited to regulating conduct that itself violates the 14th amendment.

Four DISSENTING Justices, in applying the "congruence and proportionality" approach, would hold that "the self-care provision ... validly enforces the right to be free from gender discrimination in the workplace."

How many opinions?

Well, technically four. Actually five.

  • There was the plurality opinion by Justice Kennedy, joined by Chief Justice Roberts and Justices Thomas and Alito.
  • Justice Thomas also wrote a separate concurring opinion.
  • Then, concurring in the outcome, but with alternative reasoning, an opinion by Justice Scalia.
  • The dissent by Justice Ginsburg was joined by Justices Breyer, Sotomayor, and Kagan.
  • Wait, Justices Sotomayor and Kagan did not join in on Justice Ginsburg's footnote 1, which expressed the idea (joined by Justice Breyer) that "Congress can abrogate state sovereign immunity pursuant to its Article I Commerce Clause power."

So now everything is clear, right?



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Supreme Court will decide whether FMLA's self-care leave provision abrogated states' 11th amendment immunity
June 28, 2011 by Ross Runkel at LawMemo

In Coleman v. Maryland Court of Appeals (US Supreme Ct cert granted 06/27/2011) the US Suprme Court will decide whether the FMLA's self-care leave provision abrogated states' 11th amendment immunity.

Coleman sued the state employer, asserting a claim for violation of the "self-care" provision of the Family and Medical Leave Act (FMLA). The trial court dismissed the claim on the basis of 11th Amendment immunity. The 4th Circuit affirmed.

The US Supreme Court granted certiorari to review the 4th Circuit judgment.

The 4th Circuit held that states are immune from suit for violation of 29 USC Section 2612(a)(1)(D) (the "self-care" provision) of the FMLA. In Nevada Department of Human Resources v. Hibbs, 538 US 721 (2003), the US Supreme Court held that states are not immune from claims based on alleged violations of Section 2612(C) (which entitles employees to leave for the care of family members). Hibbs "determined that Congress had enacted the FMLA in response to 'the States' record of unconstitutional participation in, and fostering of, gender-based discrimination in the administration of leave benefits.'"

The 4th Circuit also noted, however, that "preventing gender discrimination was not a significant motivation for Congress in including the self-care provision."



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DOL: FMLA leave for same-sex partner's child
June 22, 2010 by Ross Runkel at LawMemo

Department of Labor today issued Administrator's Interpretation No. 2010-3 which is intended to make clear (among other things) that an employee can qualify for Family and Medical Leave Act (FMLA) leave to care for the son or daughter of a same-sex partner. This is because the statutory definition of "son or daughter" includes a child of a person standing "in loco parentis."

Full text of the Administrator's Interpretation:

Wage and Hour Division (WHD)

Administrator's Interpretation No. 2010-3

June 22, 2010

Issued by DEPUTY ADMINISTRATOR NANCY J. LEPPINK

________________________________________

SUBJECT: Clarification of the definition of “son or daughter” under Section 101(12) of the Family and Medical Leave Act (FMLA) as it applies to an employee standing “in loco parentis” to a child.

________________________________________

The Administrator has determined that additional clarification is needed on the definition of “son or daughter” as it applies to an employee taking FMLA-protected leave for the birth or placement of a child, to care for a newborn or newly placed child, or to care for a child with a serious health condition. Based on the Wage and Hour Division’s experience in administering the FMLA, it is evident that many employees and employers are unsure of how the FMLA applies when there is no legal or biological parent-child relationship. The Administrator is issuing this interpretation to provide needed guidance on this important area of law.

Background

The FMLA entitles an eligible employee to take up to 12 workweeks of job-protected leave, in relevant part, “[b]ecause of the birth of a son or daughter of the employee and in order to care for such son or daughter,” “[b]ecause of the placement of a son or daughter with the employee for adoption or foster care,” and to care for a son or daughter with a serious health condition. See 29 U.S.C. § 2612(a)(1)(A) - (C); 29 C.F.R. § 825.200. The FMLA defines a “son or daughter” as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is— (A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability.” 29 U.S.C. § 2611(12). See also 29 C.F.R. §§ 825.122(c), 825.800.[1]

The Wage and Hour Division has received several requests for additional guidance regarding whether employees who do not have a biological or legal relationship with a child may take FMLA leave for birth, bonding, and to care for the child.

In Loco Parentis

The FMLA entitles an employee to 12 workweeks of leave for the birth or placement of a son or daughter, to bond with a newborn or newly placed son or daughter, or to care for a son or daughter with a serious health condition. 29 U.S.C. § 2612(a)(1)(A) - (C). The definition of “son or daughter” under the FMLA includes not only a biological or adopted child, but also a “foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.” 29 U.S.C. § 2611(12). See also 29 C.F.R. §§ 825.122(c), 825.800.

Congress intended the definition of “son or daughter” to reflect “the reality that many children in the United States today do not live in traditional ‘nuclear’ families with their biological father and mother. Increasingly, those who find themselves in need of workplace accommodation of their child care responsibilities are not the biological parent of the children they care for, but their adoptive, step, or foster parents, their guardians, or sometimes simply their grandparents or other relatives or adults.” See S. Rep. No. 103-3, at 22. Congress stated that the definition was intended to be “construed to ensure that an employee who actually has day-to-day responsibility for caring for a child is entitled to leave even if the employee does not have a biological or legal relationship to that child.” Id.

In loco parentis is commonly understood to refer to “a person who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to legal adoption. It embodies the two ideas of assuming the parental status and discharging the parental duties.” Niewiadomski v. U.S., 159 F.2d 683, 686 (6th Cir. 1947) (quotations omitted). Black’s Law Dictionary defines the term in loco parentis as “in the place of a parent.” Black’s Law Dictionary 803 (8th ed. 2004). “The key in determining whether the relationship of in loco parentis is established is found in the intention of the person allegedly in loco parentis to assume the status of a parent toward the child. The intent to assume such parental status can be inferred from the acts of the parties.” Dillon v. Maryland-National Capital Park and Planning Comm’n, 382 F. Supp. 2d 777, 787 (D. Md. 2005), aff’d 258 Fed. Appx. 577 (4th Cir. 2007) (citations omitted; emphasis in original).

Whether an employee stands in loco parentis to a child is a fact issue dependent on multiple factors. Megonnell v. Infotech Solutions, Inc., 2009 WL 3857451, *9 (M.D. Pa. 2009). Courts have enumerated factors to be considered in determining in loco parentis status; these factors include the age of the child; the degree to which the child is dependent on the person claiming to be standing in loco parentis; the amount of support, if any, provided; and the extent to which duties commonly associated with parenthood are exercised. Dillon, 382 F. Supp. 2d 777, 786 -787 (D. Md. 2005). [2]

The FMLA regulations define in loco parentis as including those with day-to-day responsibilities to care for and financially support a child. 29 C.F.R. § 825.122(c)(3). Employees who have no biological or legal relationship with a child may nonetheless stand in loco parentis to the child and be entitled to FMLA leave. Id. It is the Administrator’s interpretation that the regulations do not require an employee who intends to assume the responsibilities of a parent to establish that he or she provides both day-to-day care and financial support in order to be found to stand in loco parentis to a child. For example, where an employee provides day-to-day care for his or her unmarried partner’s child (with whom there is no legal or biological relationship) but does not financially support the child, the employee could be considered to stand in loco parentis to the child and therefore be entitled to FMLA leave to care for the child if the child had a serious health condition. The same principles apply to leave for the birth of a child and to bond with a child within the first 12 months following birth or placement. For instance, an employee who will share equally in the raising of a child with the child’s biological parent would be entitled to leave for the child’s birth because he or she will stand in loco parentis to the child. Similarly, an employee who will share equally in the raising of an adopted child with a same sex partner, but who does not have a legal relationship with the child, would be entitled to leave to bond with the child following placement, or to care for the child if the child had a serious health condition, because the employee stands in loco parentis to the child.

It should be noted that the fact that a child has a biological parent in the home, or has both a mother and a father, does not prevent a finding that the child is the “son or daughter” of an employee who lacks a biological or legal relationship with the child for purposes of taking FMLA leave. Neither the statute nor the regulations restrict the number of parents a child may have under the FMLA. For example, where a child’s biological parents divorce, and each parent remarries, the child will be the “son or daughter” of both the biological parents and the stepparents and all four adults would have equal rights to take FMLA leave to care for the child. Where an employer has questions about whether an employee’s relationship to a child is covered under FMLA, the employer may require the employee to provide reasonable documentation or statement of the family relationship. A simple statement asserting that the requisite family relationship exists is all that is needed in situations such as in loco parentis where there is no legal or biological relationship. See 29 C.F.R. § 825.122(j); 73 Fed. Reg. 67,952 (Nov. 17, 2008).

Examples of situations in which an in loco parentis relationship may be found include where a grandparent takes in a grandchild and assumes ongoing responsibility for raising the child because the parents are incapable of providing care, or where an aunt assumes responsibility for raising a child after the death of the child’s parents. Such situations may, or may not, ultimately lead to a legal relationship with the child (adoption or legal ward), but no such relationship is required to find in loco parentis status. In contrast, an employee who cares for a child while the child’s parents are on vacation would not be considered to be in loco parentis to the child.

Conclusion

Based upon a thorough examination of the relevant factors, it is the Administrator’s interpretation that either day-to-day care or financial support may establish an in loco parentis relationship where the employee intends to assume the responsibilities of a parent with regard to a child. In all cases, whether an employee stands in loco parentis to a child will depend on the particular facts.

________________________________________

[1] This Administrator’s Interpretation does not address an employee’s entitlement to take military FMLA leave for a son or daughter, which is determined by separate definitions. See 29 C.F.R. § 825.122(g), (h).

[2] There is no specific set of factors that, if present, will be considered to be dispositive in determining in loco parentis status. See e.g., Martin v. Brevard County Public Schools, 543 F.3d 1261 (11th Cir. 2008) (fact issue whether employee stood “in loco parentis” to his granddaughter, though the employee provided financial support, shelter, food and health insurance); Dillon, 382 F. Supp. 2d at 787 (genuine issue of material fact as to whether grandmother stood in loco parentis to employee, although grandmother had provided a home and financial support); Brehmer v. Xcel Energy, Inc., No. 06-3294, 2008 WL 3166265, at *7 (D. Minn. 2008) (finding genuine issue of material fact on in loco parentis issue where employee helped his girlfriend's son eat, dress, get ready for bed, took child to doctor appointments and to school, went to child's softball games, and contributed more than half of child's financial support).



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Gays to get family leave
June 21, 2010 by Ross Runkel at LawMemo

The AP is reporting that the Department of Labor intends to issue regulations on Wednesday ordering businesses to give gay employees equal treatment under the Family and Medical Leave Act (FMLA).

From the AP:

The Labor Department intends to issue regulations this week ordering businesses to give gay employees equal treatment under a law permitting workers unpaid time off to care for newborns or loved ones.

Labor Secretary Hilda Solis planned to announce Wednesday that the government would require employers to extend the option that has been available to heterosexual workers for almost two decades, two officials briefed on the plan said Monday. Neither was authorized to speak publicly ahead of the announcement.

The move, coming less than five months before November's congressional elections, seemed likely to incite conservatives and Republicans who stood in lockstep against the Obama administration's earlier efforts to repeal a ban on gays and lesbians serving openly in the military. It also appeared likely to be popular with loyal Democrats and organized labor.

The Family and Medical Leave Act allows workers to take up to 12 weeks of unpaid leave each year to take care of loved ones or themselves. The 1993 law, which also allows employees to take time off for adoptions, has previously only been applied to heterosexual couples.

The Labor Department planned to extend those rights based on a new interpretation of the law, the officials said. There was no plan to ask Congress to change the law, which means future presidents could reverse the decision.

President Obama and his administration have slowly rolled out policies to help gays and lesbians, who supported his candidacy but have soured on what they consider his slow pace in making incremental instead of wholesale changes. He planned to meet with gay activists Tuesday at the White House, the second time such a reception has been held at the executive mansion.

Gay activists have been frustrated with Obama's approach to gay policies. The White House reluctantly backed a compromise on the military's "don't ask don't tell" policy on gays in the military that would move ahead on repeal but still allow the Pentagon time to implement new policies.

Earlier this month, Obama issued orders for government agencies to extend child care services and expanded family leave to their workers. Obama's order for federal employees, though, covers only benefits that can be extended under existing law, without congressional action. Legislative action would be required for a full range of health care and other benefits.

Last year, Obama gave federal workers' same-sex partners a first round of benefits including visitation and dependent-care rights. He also authorized child-care services and subsidies; more flexibility to use family leave to attend to the needs of domestic partners and their children; relocation benefits; giving domestic partners the same status as family members when federal appointments are made; and access to credit union and other memberships when those are provided to federal workers.




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FMLA amended to aid airline crews
December 24, 2009 by Ross Runkel at LawMemo

The Airline Flight Crew Technical Corrections Act was signed by the President on December 31.

The Act changes the way hours are calculated for flight crews and flight attendants, making it easier to qualify for FMLA leave.

[S. 1422 text]



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FMLA amendment goes to President
December 04, 2009 by Ross Runkel at LawMemo

The Airline Flight Crew Technical Corrections Act, to amend the FMLA, has passed the House and Senate, and now goes to the President.

It provides that flight crews get credit for all hours, not just flight hours, for the FMLA hours-worked threshold. 

[S. 1422 text]



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Ready for new FMLA regulations?
February 09, 2008 by Ross Runkel at LawMemo

Department of Labor's proposed amendments to its regulations under the Family and Medical Leave Act (FMLA) will be filed in the Federal Register on February 11, 2008. Comments must be received on or before April 11, 2008. The filing includes both proposed changes to previously-adopted regulations and a request for input on for new regulations implementing the new statute dealing with military family leave.

Notice of Proposed Rulemaking; Request for Comments (02/11/2008) [477 pages]

(1) Previous regulations are reorganized. There are substantive changes dealing with the definition of "serious health condition," required notices, joint employers, light duty, overtime, bonuses, substituting paid leave for FMLA leave, voluntary settlement of claims, employer's failure to designate absences as being FMLA leave, and other matters.

(2) DOL seeks public comment on issues to be addressed in final regulations dealing with military family leave. (Statutory amendments providing FMLA leave to care for a covered servicemember became effective January 28, 2008. A statutory amendment providing FMLA leave for "qualifying exigencies" arising out of a family member's active duty or call to active duty are not effective until DOL issues regulations defining "qualified exigencies.")



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Effective immediately, FMLA covers care for member of armed forces
January 30, 2008 by Ross Runkel at LawMemo

Amendments to the Family and Medical Leave Act of 1993 (FMLA) are effective on January 28, 2008.

The National Defense Authorization Act for FY 2008 (NDAA) was signed by the President January 28. Section 585 amends the FMLA to permit a "spouse, son, daughter, parent, or next of kin" to take up to 26 workweeks of leave to care for a

"member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness."

The NDAA also permits an employee to take FMLA leave for "any qualifying exigency (as the Secretary [of Labor] shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation." By its express terms, this provision of the NDAA is not effective until the Secretary of Labor issues final regulations defining "any qualifying exigency."

DOL web site, including link to full text: http://www.dol.gov/esa/whd/fmla/NDAA_fmla.htm



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Multiple medical leave claims
May 11, 2007 by Ross Runkel at LawMemo

Michael Faust filed multiple claims against his former employer, all arising out of his back pain, and a note from his chiropractor:

  • discharge in violation of his right to medical leave under the California Family Rights Act (CFRA) (a part of the California Fair Employment and Housing Act (FEHA))
  • retaliation
  • wrongful discharge
  • disability discrimination

The trial court granted summary judgment for the employer,but the California Court of Appeal reversed as to most of Faust's claims. Faust v. California Portland Cement (California Ct App 05/10/2007)

Faust was experiencing severe back pain. His treating chiropractor provided a note recommending treatment and stating that he was "unable to perform regular job duties" for a month. Faust gave the note to his employer. In an exchange of voicemails the employer requested to speak to him about the chiropractor's report. Faust stated that the employer could speak to his wife, chiropractor, or workers compensation attorney, but the employer did not. Faust did not reply to a letter detailing perceived defects in the chiropractor's report. Later the employer discharged Faust, stating that his paperwork was "insufficient to sustain an approved absence."

The California Court of Appeal held:

  1. There was a triable issue on Faust's CFRA claims because the employer did not post notice or give notice to Faust of his CFRA rights, Faust provided notice of his need for CFRA leave, and Faust's chiropractor's report stated the reason for CFRA leave. Although the employer claimed that Faust unreasonably failed to respond to inquiries about his health, another possible inference is that the employer unreasonably refused to communicate with his designated representatives. The court rejected the employer's assertion that Faust's chiropractor was not a qualified health care provider.
  2. There was a triable issue on Faust's claim of retaliation for exercising CFRA rights because he presented a prima facie case, and the employer's assertion that it discharged him for insubordination (taking an unauthorized leave) was undermined by the employer's refusal to communicate with any of Faust's representatives.
  3. There was a triable issue on Faust's claim of wrongful termination in violation of public policy. Because he has viable claims for violation of the CFRA, "it necessarily follows" that he has a triable issue for wrongful termination in violation of public policy.
  4. There was a triable issue on Faust's claim of disability discrimination. There was evidence that the employer was aware of his orthopedic condition, that the employer rejected the chiropractor's recommendation of a leave, and that the employer discharged Faust. The asserted insubordination (taking an unauthorized leave) was undermined by the employer's refusal to communicate with any of Faust's representatives.




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FMLA comment period extended
January 29, 2007 by Ross Runkel at LawMemo

The deadline for comments on the FMLA has been extended to February 16 (it was February 2). [Federal Register Notice]

My previous entry on this:

Federal Register Notice: http://www.dol.gov/esa/whd/06-9489.pdf
Special DOL web site: http://www.dol.gov/esa/whd/fmlacomments.htm

The US Department of Labor has published a formal notice requesting comments on the Family and Medical Leave Act (FMLA). Instead of publishing proposed new rules for comment, DOL is first seeking comments on 12 substantive areas:

  • (1) Eligible Employee 
  • (2) Definition of "Serious Health Condition" 
  • (3) Definition of a "Day" 
  • (4) Substitution of Paid Leave 
  • (5) Attendance Policies 
  • (6) Different Types of FMLA Leave 
  • (7) Light Duty 
  • (8) Essential Functions 
  • (9) Waiver of Rights 
  • (10) Communication Between Employers and Their Employees 
  • (11) FMLA Leave Determinations / Medical Certifications 
  • (12) Employee Turnover and Retention. 


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FMLA Request for Information
December 05, 2006 by Ross Runkel at LawMemo

Federal Register Notice: http://www.dol.gov/esa/whd/06-9489.pdf
Special DOL web site: http://www.dol.gov/esa/whd/fmlacomments.htm

The US Department of Labor has published a formal notice requesting comments on the Family and Medical Leave Act (FMLA). Instead of publishing proposed new rules for comment, DOL is first seeking comments on 12 substantive areas:

  • (1) Eligible Employee 
  • (2) Definition of "Serious Health Condition" 
  • (3) Definition of a "Day" 
  • (4) Substitution of Paid Leave 
  • (5) Attendance Policies 
  • (6) Different Types of FMLA Leave 
  • (7) Light Duty 
  • (8) Essential Functions 
  • (9) Waiver of Rights 
  • (10) Communication Between Employers and Their Employees 
  • (11) FMLA Leave Determinations / Medical Certifications 
  • (12) Employee Turnover and Retention. 

Deadline for comments is February 2 2007.



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FMLA 50-employee threshold overcome by equitable estoppel
April 19, 2006 by Ross Runkel at LawMemo

Can an employee overcome the FMLA 50-employee threshold by using the doctrine of equitable estoppel? Minard v. ITC Deltacom (5th Cir 04/18/2006) says yes.

Family Medical Leave Act applies only when the employer has 50 or more employees.

Minard claimed that the employer told her she was eligible for FMLA leave, and therefore the employer should not be allowed to assert that the 50-employee threshold has not been met.

The 5th Circuit agreed, saying:

an employer who without intent to deceive makes a definite but erroneous representation to his employee that she is an “eligible employee” and entitled to leave under FMLA, and has reason to believe that the employee will rely upon it, may be estopped to assert a defense of non-coverage, if the employee reasonably relies on that representation and takes action thereon to her detriment.

The court remanded for findings on whether Minard actually relied.



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Fetching a car is not FMLA-protected leave
July 12, 2005 by Ross Runkel at LawMemo

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."



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