August 8, 2005

RE: What Kind of Care is Required by the FMLA?

by Anne Birgel and Peter Bennett

The Ninth Circuit recently considered what kind of care is required under the Family Medical Leave Act. Holding that the Plaintiff did not spend his leave “caring” for his wife as required under the FMLA, the Court affirmed summary judgment for Alaska Airlines.

Alaska Airlines employed Plaintiff Charles Tellis as a Seattle-based maintenance mechanic. Towards the end of his wife’s difficult pregnancy, Tellis requested time off to care for her. Tellis’ supervisor advised him that time might be available under the FMLA and directed him 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, 2000. 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 the evening of July 6 and arrived back in Seattle on the evening of July 10. While away, Tellis made frequent cell phone 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 he did not show up, and having failed to file any forms requesting leave beyond the approved holiday and vacation leave, Alaska Airlines attempted unsuccessfully to contact him. Tellis was terminated on July 18 for unexcused absences. When Tellis grieved his termination, Alaska Airlines offered to re-instate 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.

Summary judgment was granted to Alaska Airlines when the trial court concluded that driving across country during his leave was not caring for his wife. On appeal, the Ninth Circuit agreed, holding as a matter of law that caring for a family member under the FMLA “involves some level of participation in ongoing treatment of [a serious health] condition.” (citing Marchisheck v. San Mateo County, 199 F.3d 1068, 1076 (9th Cir. 1999)). The Court affirmed that such level of participation requires “close and continuing proximity to the ill family member.” While Tellis argued that having a working vehicle provided psychological reassurance to his wife, the Court concluded that such reassurance was merely an indirect benefit to the otherwise unprotected activity of traveling away from the person needing care. Since his actions were not protected by the FMLA, consequently his absence from work was not protected either.

EMPLOYER NOTE: The Family Medical Leave Act requires that an employee’s leave actually be used for caring for a family member. Case law makes clear that “caring for” requires that an employee meaningfully participate in that care.