Rhomeo Tayag suffers from a variety of medical conditions, including gout, chronic liver and heart disease, rheumatoid arthritis and kidney problems. These illnesses intermittently leave him debilitated. He depends on his wife, Maria, to help him with daily tasks, including basic household chores, preparing food and getting to doctors’ appointments.
From 2003 to 2006, Maria Tayag took intermittent Family and Medical Leave Act (FMLA) leave from her job as a health management clerk at Lahey Clinic Hospital in Boston to care for Rhomeo. Typically her leave requests lasted one or two days at a time. Lahey routinely approved these requests.
In July 2006, Tayag sought a longer leave to accompany her husband on a trip. In support of the request, Rhomeo’s regular doctor sent Lahey’s FMLA administrator a certification stating that Rhomeo’s diseases “significantly affect” his ability to “do activities of daily living” and advised that Maria should be granted leave “to accompany Mr. Tayag on any trips” and provide physical assistance.
Before the request for leave was approved, Maria and Rhomeo left the country on a seven-week trip to the Philippines. On the trip, the Tayags prayed, visited churches and met with Catholic priests, seeking faith-based healing for Rhomeo’s ailments.
Meanwhile, Lahey couldn’t reach Maria, and while she was gone, the hospital fired her. When she returned, Tayag sued, claiming that Lahey interfered with her right to use FMLA leave to assist her ill husband and retaliated against her.
Ultimately the district court rejected the claims, and on Jan. 27, the 1st Circuit affirmed, finding that a spiritual healing trip in which no conventional medical treatment was sought is not covered under the FMLA.
“The decision gives employers some nice tools to ensure that they’re getting sufficient certifications from doctors that the leave is attributable to medical treatment,” says Brian Lewis, a Jackson Lewis partner who represented Lahey.
The FMLA allows employees to take intermittent leave from work to care for a seriously ill spouse or family member. Courts have recognized that assisting a family member in seeking medical care is covered within the FMLA. But Tayag v. Lahey Clinic Hospital pushed the boundaries of what “medical care” encompasses.
Tayag characterized the seven-week trip as a “healing pilgrimage” which, she argued, should be covered. Tayag pointed to Department of Labor regulations that provide that a Christian Scientist practitioner is considered a person “capable of providing health care services.” She argued that it would be unconstitutional discrimination not to extend the exception to the Catholic priests she and her husband visited on their trip.
The 1st Circuit rejected that claim, finding that the exception for Christian Scientists, whose religion forbids conventional treatment, was really designed to cover only those “patients who choose to rely solely upon a religious method of healing and for whom the acceptance of medical health services would be inconsistent with their religious beliefs.”
Still, some experts say the court left open an argument for faith-based healing to be covered under the law. “If the trip did not contain any vacationing, or at least a much smaller percentage of vacationing, then the court might entertain the psychological benefits of such a trip,” says Stephen Schwartz, a New Jersey-based employment lawyer and former general counsel. Schwartz points out that the Tayags spent 19 days sightseeing on their trip. “Perhaps, if the husband had stayed on the campus and focused all of his attention on the ‘treatment’ then the court may have been persuaded that this was a recognized form of psychological treatment.”
Tayag’s attorneys think the court got it wrong by shifting the focus from the use of leave to accompany an ill family member on a trip to whether the trip had a medical purpose.
“Our strongest position was that the statutory language encompasses caring for her husband while traveling,” says Monica Molnar, an Avery Dooley Post & Avery lawyer who represented Tayag. “Our focus was on whether accompanying an ill spouse on a trip was a covered use of FMLA leave rather than the religious aspect.”
For employers, the best news to come from the Tayag decision is that the court sanctioned an employer’s right to push back when presented with a vague or otherwise suspect request for FMLA leave.
Lahey did just that when a generic certification from Rhomeo’s primary care physician stated that he had medical conditions, including coronary artery disease, that caused impairment. The hospital followed up with Rhomeo’s cardiologist, who explained the patient’s condition in more detail and revealed that Rhomeo
“If an employer receives a certification from the general practitioner that says the person has ‘depression’ or some other condition without more detail, the employer can follow up with the specialist or the person who actually treats this problem,” Lewis says.
The follow-up process is not without its pitfalls, however. As employees become more creative in seeking protection under FMLA, retaliation claims and litigation are likely to result.
“There are many close cases when employees request nontraditional leave,” says Erik Eisenmann, an attorney with Whyte Hirschboeck Dudek. “Courts may have to address these novel situations.”