A mother was entitled to take time off under the Family and Medical Leave Act in order to make day care arrangements for her autistic child, a federal judge held in an opinion issued the same day as the case was closed after settling.
The effective change to Rachel Wegelin’s working hours meant that she had to find a new day care center for her daughter, Carolyn, for which she was entitled to take leave under the FMLA, U.S. District Judge Timothy J. Savage of the Eastern District of Pennsylvania said in Wegelin v. Reading Hospital and Medical Center.
“Making arrangements for ‘changes in care’ is expressly covered by the regulations,” Savage said after quoting a passage from the FMLA. He later concluded, “When Reading Hospital changed Wegelin’s parking assignment, she had to make arrangements for a change in Carolyn’s care, entitling Wegelin to FMLA leave.”
Because the opinion is fact-specific, Vincent Candiello of Post & Schell in Harrisburg, who represented the hospital, said he doesn’t expect that it will have much bearing on future cases.
“I don’t think it will cause much of an impression because it’s inconsistent with regulations and other case law out there,” Candiello said, noting that there are no other cases that hold similarly to Savage’s ruling.
While Wegelin’s lawyer, John Bucolo of Setley Rauch & Bucolo in Wyomissing, Pa., agreed that the case presented a unique factual situation, he said that Savage’s opinion makes it clear that the FMLA regulations include a broad definition of a “serious health condition.”
The FMLA allows a worker to take leave in order to take care of a child who has a “serious health condition,” which is defined as having an “‘illness, injury, impairment, or physical or mental condition’ that involves ‘inpatient care in a hospital, hospice, or residential medical care facility’ or ‘continuing treatment by a health care provider,’” Savage said, quoting from the regulations.
He held that Wegelin’s daughter’s condition could fall under the latter category.
“A ‘serious health condition’ includes any period of incapacity … due to a chronic condition, which has continued over an extended period of time and requires ‘periodic visits’ for treatment or evaluation with a doctor, nurse practitioner, or clinical social worker, or a nurse under the direct supervision of a doctor, nurse practitioner or clinical social worker,” Savage said.
Wegelin’s daughter has a significant developmental disorder and is blind in her left eye, leaving her unable to be left alone, according to the opinion. She has constant supervision, at home, school and day care.
The upshot of that holding for the FMLA is that the child is in a perpetual state of suffering from a serious health condition, so any need — doctor’s appointments or day care arrangements — can trigger her mother’s entitlement to leave under the FMLA in order to attend to her.
“Considering Carolyn’s mental and emotional conditions, and her developmental history, a jury could find that she has a chronic serious health condition that causes an impairment,” Savage said. “It would then have to determine whether the impairment caused incapacity.”
The FMLA’s definition of incapacity includes the inability to attend school or do other ordinary activities because of the health condition, but doesn’t define what those activities are. Savage looked to the Americans with Disabilities Act for elucidation and found that Wegelin’s daughter couldn’t do many of the things on the ADA’s list, which included caring for oneself, concentrating, communicating and interacting with others.
Wegelin is a working parent, for whom the FMLA was intended to help, and had arranged a day care schedule for her daughter so that Wegelin could drop her off before work around 8 a.m. and pick her up after work around 5:30 p.m.
However, when her employer moved her assigned parking spot to a lot significantly farther away, Wegelin had to find a new day care provider that would be open later than 5:30 p.m., according to the opinion. In order to do that, Wegelin needed to take time away from work, since she only had half an hour for lunch and wasn’t allowed to use her cellphone near the hospital and wasn’t allowed to use work phones for personal calls, according to the opinion.
Wegelin argued that the search for suitable day care for her daughter constituted “need to care for” under the FMLA. The hospital argued that it did not. “It contends she has failed to demonstrate a nexus between Carolyn’s health condition and the need to find an alternative day care,” Savage said.
The FMLA clearly covers a parent’s need to make arrangements for “changes in care,” Savage said. “Significantly, the regulations are silent on whether the facility needs to be one that provides medical treatment. The fact that Carolyn’s day care is not a specialized facility is not dispositive. What is relevant is that Carolyn has a chronic serious health condition resulting in an inability to perform regular daily activities and Wegelin had to make arrangements to find suitable day care that could care for her.”
(Copies of the 15-page opinion in Wegelin v. Reading Hospital and Medical Center, PICS No. 12-2255, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •