Federal Family and Medical Leave Act Issues

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April 17, 2006

I. Meaning of “Care” for FMLA Purposes.
 
In Tellis v. Alaska Airlines, Inc., 414 F.3d 1045 (9th Cir. 2005), the Ninth Circuit Court of Appeals recently considered what kind of “care” is required to qualify an employee for leave to care for a family member under the federal Family and Medical Leave Act (FMLA). Alaska Airlines employed Charles Tellis as a Seattle-based maintenance mechanic. Toward the end of his wife’s difficult pregnancy, Tellis requested time off to care for her. Tellis’ supervisor advised him that the time off might be available under the FMLA. The supervisor directed Tellis to the benefits office for the necessary paperwork. Rather than completing those forms, Tellis requested holiday and vacation leave for July 5, 6, and 7. On July 5, Tellis called to request FMLA leave and the appropriate forms were sent to him.
On July 6, Tellis’ car broke down and he decided to fly to Atlanta to pick up another car that he had there. He left Seattle on July 6 and arrived back in Seattle on July 10. While gone, Tellis made frequent cell telephone calls home to check on his wife, who delivered a baby girl during his absence on July 9.
  Tellis’ next shift was scheduled for July 11. When Tellis did not show up, and having no forms from him requesting leave beyond the approved holiday and vacation, Alaska Airlines attempted to reach him but could not do so. Alaska Airlines terminated Tellis on July 18 for unexcused absences.
  When Tellis grieved his termination, Alaska Airlines offered to reinstate him if he would accept a disciplinary letter in his file. Under the terms of the offer, the disciplinary letter would remain in his file for a period of one year and he would not be permitted to grieve it. Tellis refused this offer and filed suit under the federal FMLA.
  Tellis argued that he was entitled to FMLA leave during the time he was traveling back and forth between Atlanta and Seattle retrieving his car because he was calling his wife on the cell telephone to check on her condition. He argued that having a working vehicle provided psychological reassurance to his wife. The Ninth Circuit Court of Appeals disagreed. The Court held as a matter of law that caring for a family member under the FMLA “involves some level of participation in ongoing treatment of serious health condition.” The Court stated that such level of participation requires “close and continuing proximity to the ill family member.” The Court concluded that Tellis’ claim that having a working vehicle provided psychological reassurance to his wife was merely an indirect benefit to the otherwise unprotected activity of traveling away from the person needing care. The Court concluded since Tellis’ actions were not protected by the FMLA, his absences from work were not protected and he was subject to termination.
This case points out that under the federal FMLA, time taken off to “care” for a family member must actually be used for that purpose. That is, the employee must actually be providing “care” to the family member to qualify for leave.
 
II. Treatment Must Occur During Incapacitation Period.
 
In Jones v. Denver Public Schools, 427 F.3d 1315 (10th Cir. 2005), the Tenth Circuit Court of Appeals ruled that an employee was not protected by the federal FMLA because his second visit to his health care provider occurred after he was no longer incapacitated by an injury.
Under 29 C.F.R. 825.114, employees may qualify for employee medical leave if they are incapacitated for more than three days and are treated two or more times by a health care provider.
  In Jones, the employee had hurt his back and, while home from work, visited his health care provider on one occasion. When he was able to return to work, he was terminated by the Denver School District for various reasons. While his termination was under appeal, he visited his health care provider again. The health care provider simply noted that his back was improving.
The Tenth Circuit Court of Appeals concluded that the employee was not incapacitated when he visited his health care provider the second time. Because he was not treated by the health care provider a second time while incapacitated, the Court ruled that he was not protected by the FMLA. The Court indicated that a contrary ruling would invite improper behavior by employees. That is, employees could schedule a second visit with their health care providers with regard to a prior serious health condition long after all symptoms had subsided and therefore claim they qualify for FMLA leave and that their absence form work is protected.
Be aware that Wisconsin employees are entitled to two weeks of employee medical leave in a calendar year under Wisconsin’s law. A different result than that reached in Jones could result under the same facts pursuant to Wisconsin’s law.
 
III. Medical Certification and Invasion of Privacy.
In O’Reilly v. Rutgers, D.N.J. Nov. Civ. A 04-5787 (1/19/06), an employee, Laurie O’Reilly, refused to provide her supervisors with a medical certification form after she requested leave under the federal Family and Medical Leave Act (FMLA). Instead, she wanted to give the form to licensed medical staff at Rutgers University, which was her employer. Rutgers required, however, that she submit her form to her department head, according to its general policy in which each department functions as employer with regard to many aspects of personnel administration. After being given several opportunities to provide the form to her department head, and given warnings with regard to failing to do so, she was terminated.
O’Reilly then filed suit claiming that Rutgers interfered with her right to have FMLA leave by demanding that she provide the confidential medical certification to her supervisors. She claimed that Rutgers also violated her “rights to privacy protected by the U.S. Constitution.”
The New Jersey Court concluded that O’Reilly offered “no persuasive authority” to suggest that Rutgers violated the FMLA by requiring her to submit her medical certification to her department head, rather than allowing her to submit that information to separate medical staff at Rutgers. That Court noted that even O’Reilly’s alleged fear that her medical information might be wrongfully disclosed did not permit her to refuse to submit the form to her employer. In regard to O’Reilly’s claim of violation of her constitutional rights of privacy, the Court concluded that the medical certification form was limited in scope and obtaining the information on the form was permitted by the FMLA regulation. The Court found O’Reilly’s constitution claim to be without merit.
If you have questions regarding the above, please contact any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.

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