FMLA's "Care For" Requirement Does Not Cover Mere Hospital Visit

In Fioto v. Manhattan Woods Golf Enterprises, LLC, __ F. Supp. 2d __, 2003 U.S. Dist. LEXIS 12297 (S.D.N.Y. July 2, 2003), the District Court for the Southern District of New York entered judgment as a matter of law following a 3-day jury trial, in which the jury found in favor of the plaintiff. The plaintiff, a sales manager, was fired from his job after taking a day off from work to be present at the hospital while his dying mother underwent emergency brain surgery. He brought suit alleging breach of contract and violation of the Family and Medical Leave Act (FMLA), 29 U.S.C. Section 2612(a)(1)(C). At the close of plaintiff’s case, the defendant moved for judgment as a matter of law on the FMLA claim and the Court reserved decision. The defendant renewed the motion following the jury verdict.

Initially, the Court examined the provisions of the FMLA, which enables an employee to take up to twelve weeks of unpaid leave to “care for” a spouse, child, or parent if the spouse, child or parent has a serious health condition. In this case, the focus was on whether plaintiff had actually provided the requisite care to his mother so that his day off from work would qualify as FMLA leave. The Court looked to the regulations at 29 C.F.R Section 825.116, which provide guidance on what it means to “care for” a family member under the FMLA. The regulations provide that both physical and psychological care are covered by the Act. For example, an employee is entitled to FMLA leave where he must care for a family member who can no longer provide for her basic needs or where he must provide psychological comfort and reassurance to a family member who is receiving treatment for a serious health condition. The FMLA also covers situation where the employee is called upon to fill in for others who are caring for the ill family member. While the Court acknowledged that the FMLA is to be broadly interpreted, it recognized that there are limits on what constitutes a qualified leave. The Court observed, for example, that merely visiting an ill family member is not covered. The Court’s focus was clearly on whether the employee was actually required to provide some kind of ongoing care.

Here, the parties agreed that there was no evidence that the plaintiff was needed to care for his mother’s physical needs. However, before the jury, the plaintiff argued that he provided psychological care for his mother. The Court found that his testimony did not support this conclusion. At trial, the plaintiff testified that he took the day off from work so that he could be at the hospital while his mother underwent surgery, which was considered risky. He did not see her after the surgery. He returned to work the next day, still without having seen his mother. When he arrived at work, he was advised that his employment had been terminated. There was no testimony regarding his mother’s condition prior to the surgery or plaintiff’s interaction with his mother or her physicians. In the Court’s view, there was simply not enough evidence from which a jury could infer that the plaintiff was needed to “care for” his mother. The Court relied on a Magistrate Judge’s decision in Cianci v. Pettibone Corp., 1997 U.S. Dist. LEXIS 4482 (N.D. Ill. April 8, 1997), in which the Court found that an employee’s request for an extended leave to visit her dying mother in Italy was not covered by the FMLA.

The Court acknowledged, however, that other courts have reached different conclusions on similar evidence. For example, the District Court for the District of Maine determined that only a minimal level of comfort need be shown to a sick relative in order to establish FMLA-covered psychological care. In Plumley v. Southern Container, Inc., 2001 U.S. Dist. LEXIS 16040 (D. Me. Oct. 9, 2001), the Court concluded (in dicta) that an employee who spent time with his father while he was hospitalized met the requirements for an FMLA-covered leave. Similarly, in Brunelle v. Cytec Plastics, Inc., 225 F. Supp. 2d 67 (D. Me. 2002), the Court found that the employee, who kept vigil by his father’s bedside and participated with his father’s physicians regarding his father’s care, had satisfied the FMLA’s “care for” requirement. The Court in Fioto did not disagree with these decisions. Rather, the Court found that the evidence before the jury was wholly insufficient to establish that the plaintiff had provided the requisite level of care. Had the plaintiff provided some testimony that his mother was aware of his presence at the hospital or that he participated with her physicians in making decisions regarding her care, the jury’s verdict in his favor on the FMLA claim would have been justified. According to the Court, [i]t was incumbent on plaintiff to demonstrate that he was doing something – anything – to participate in his mother’s care.” Plaintiff failed to meet this burden.

The Court refused to find the missing evidence in the testimony of plaintiff’s employer, who indicated that plaintiff had to “take care of his mother,” finding no basis for the employer’s conclusory statement. In the end, the Court chastised the defendant employer for firing plaintiff for taking a single day off for an important personal reason. However, the Court refused to find a violation of the FMLA.

The Court upheld the jury’s verdict in favor of the plaintiff on his breach of contract claim. The parties agreed that the plaintiff’s employment was governed by the terms of the unsigned contract, which provided that plaintiff could only be terminated for “reasonable cause.” In the Court’s view, the jury could have reasonably concluded that the plaintiff’s termination was unreasonable.

Notwithstanding the Court’s decision in this case, it makes little sense (from a number of different standpoints) for an employer to risk an FMLA lawsuit where an employee takes a single day off from work to go to the hospital to be with a dying relative who is undergoing a surgery from which that relative might never recover. That said, employers should be mindful of the “care for” requirement in the FMLA and the accompanying regulations on the subject when considering a request for FMLA leave.