What’s up with the Family and Medical Leave Act? Courts are deciding lots of interesting cases and swatting down employees whose claims are inconsistent with the FMLA’s purpose. Brace yourself for a string of sanity.
First, let’s travel to the Philippines and look at one employee who thought the FMLA protected her absences from work to visit her native country to see a faith healer. The 1st U.S. Circuit Court of Appeals sketched it out in its decision in Tayag v. Lahey Clinic Hospital Inc. (2011). Maria Tayag’s husband was ill. She decided to go to the Philippines with him to visit a faith healer. The problem was that her employer did not OK the leave, and she was terminated while she was overseas. She sued, claiming the FMLA protected the time off for the visit and thus her termination was unlawful. In affirming summary judgment for the employer, the appeals court noted that seeing a faith healer on a “healing pilgrimage” did not comprise medical care under the FMLA, which involves seeing a health-care provider. Because faith healers are not health-care providers, there was no FMLA violation.
Wanderlust seems popular in FMLA cases, so let’s visit Atlantic City, N.J., and then Cancun, Mexico. A federal magistrate judge in the U.S. District Court for the Eastern District of Virginiagave us this travelogue in 2011′s Campbell v. Verizon Virginia Inc., et al.: Todd Campbell received approved FMLA leave from his employer, Verizon Virginia, for severe depression, migraines and stress-related anxiety. There were no restrictions on how he was to spend his time while on leave. He went to Caesars Hotel & Casino in Atlantic City for a respite. His employer fired him upon learning of his visits to the boardwalk.
He sued, alleging FMLA retaliation, reasoning that the leave documents did not say what he could not do, so anything he wanted to do was fair game. The court granted summary judgment to the employer, rejecting Campbell’s’ argument: “[T]aking time off to enjoy a mini-vacation gambling is not conceivably within the bounds of FMLA leave.” The court also noted that his absence was designed to address his medical or mental conditions, not gamble. Campbell appealed, and the 4th U.S. Circuit Court of Appeals affirmed the decision this year.
Now, let’s shift to sunny Mexico. Denise Pellegrino worked for a labor union. She had to go on leave for a serious surgery. The FMLA allows an employer to require the employee to concurrently use paid sick leave and FMLA leave. But her employer’s sick leave policy required the employee to stay in the immediate vicinity. She didn’t; she had her surgery on Oct. 2 and headed to Cancun on Oct. 16. The union fired her, and she sued, alleging a violation of the FMLA. In affirming summary judgment this year, the 3rd U.S. Circuit Court of Appeals noted that she was obligated to adhere to her employer’s rule as long as it didn’t conflict with the FMLA (it didn’t) and therefore the termination didn’t violate the FMLA.
But Pellegrino argued that she did not know of the rule and that the FMLA required her employer to tell her she would be terminated if she failed to adhere to her employer’s valid rule. The court was direct: Nothing in the FMLA requires an employer to import all the employer’s rules and regulations into the Department of Labor-approved FMLA form. She got the form and that’s all that’s required of the employer.
Now, take a look at Baham v. McLane Foodservice Inc., a 2011 opinion from the 5th U.S. Circuit Court of Appeals that set out the following: An executive from Texas, Girard J. Baham Jr., was in Honduras on vacation with his family. His daughter seriously injured herself in a fall and was airlifted to Miami. He took leave under the FMLA. At some point he returned alone to Texas, but he remained in frequent telephone contact with his wife, who was in Miami with their child. While in Texas he prepared for their daughter’s return by padding the sharp edges in their home to protect her. His employer later terminated him, and he sued claiming FMLA retaliation. Claim or no claim?
Answer: No claim. The FMLA allows a parent to take leave to “care for” a child with a serious medical condition. But to “care for” requires physical proximity to the child, which is lacking here. So in Baham, the 5th Circuit affirmed summary judgment for the employer. Trust me, we will see more of these claims as baby boomers are required to take care of their aging parents as well their young children, and family demands pull hard on boomers’ time and energy. As this trend accelerates, keep in mind this bright-line rule.
And, speaking of families, I was sitting at the bar of a sushi restaurant near my loft, reading new FMLA cases, and Leo Tolstoy popped into my mind — his famous opening line from “Anna Karenina”: “Happy families are all alike; every unhappy family is unhappy in its own way.”
Tolstoy and the FMLA? Yes. Two cases from this spring show that the employer always should depose the family member or quasi-family member in question. Why? That person might disagree with the employee about whether he or she needed to be “cared for.”
Check out Hoopingarner v. Corinthian Colleges Inc. from the U.S. District Court for the Middle District of Florida. According to the court’s opinion, the plaintiff, Edward Bruce Hoopingarner, said that he needed to stay home and take care of his wife, who suffered from manic depression and post-traumatic stress disorder, among other ailments. But in her deposition, she testified that she did not need his help, he did not need to take time off from work to help her, and any care that she did need from him could be provided after working hours. Summary judgment granted for the employer. The parties settled recently, and the case was dismissed.
The 8th U.S. Circuit Court of Appeals issued an opinion, Miller v. State of Nebraska Department of Economic Development, et al., in which it affirmed a summary judgment for an employer. The opinion sketched it out: The plaintiff’s father was diagnosed with prostate cancer and given 60 days to 90 days to live. The plaintiff, David E. Miller, took FMLA-protected time off from work, according to him, to care for his father and was terminated for excessive absenteeism in violation of the FMLA.
But the father’s longtime companion and her daughter testified about whether the dad needed care from the son. Their answer was no. They testified that the dad could take care of the day-to-day requirements of life, such as brushing his teeth, dressing himself, using the telephone and shopping for groceries. Here is the court on what else the dad could do when Miller took his absences: The father “operated a motor vehicle, attended social functions and church services, went to restaurants and even danced.”
And even danced? Case over. No evidence that the son was needed to “care for” the dad, so the absences were not FMLAprotected.
When Congress enacted the FMLA in 1993, there were dire warnings that employees would exploit it. Every new idea slams into such worries. When trains became popular in the 1830s, scientists warned passengers would suffocate in any train going more than 30 miles an hour. But, things seldom turn out to be as bad as predicted. So, too, with the FMLA. Courts are stopping plaintiffs’ more outrageous arguments. The sanity continues.
More from Michael Maslanka:
“Beach Blanket Lingo: The 2012 Summer Reading List“
“Asking for a Facebook Password Can Be Risky“
“How to Handle the New ADA Landscape“
“10 Lessons from 30 Years in the Law“
“Lesser-Known Speeches Hold Lessons for GCs“
“The Power of Influence: Insight Into Persuasion Is Key to Helping Others Find Wisdom“
“Identity and Meaning in and Outside Law“
“When Legal Sense Trumps Practical Sense“
“Litigation Lessons from the Battles of History“
“Summertime Beach Reads for In-Housers“
“Reminders About Right and Wrong“
“Train Managers Now in ADA Amendments“
“Ditch New Year’s Resolutions and Reprioritize for 2011“
“What to Do and Not Do in Voir Dire and Opening Statements“
“What Cognitive Theory Can Teach Corporate Counsel“
“High Courts to Weigh Noncompete, Retaliation Cases“
“Commentary: Ask and You Shall Receive“
“ADA Amendments Mean Seismic Shift for Employers“
“Lessons of Letterman: The Top Reasons Bosses Should Be Concerned About Workplace Relationships“
“Beware of Employees’ Conduct-Based Suits“
“Commentary — The Reptile Brain: Develop a Cognitive Sixth Sense“
“Have You Come a Long Way, Baby?“