A new ruling from the federal Ninth Circuit Court of Appeals focuses on a little-known provision of the Family and Medical Leave Act that permits employees to take leave to provide psychological comfort and assistance to family members with serious physical or mental illnesses. We”ll explain the court’s ruling.
Employee Takes Leave To Care For Depressed Father
Joseph Scamihorn worked for four years as an Albertson’s Inc. truck driver at the grocer’s Brea distribution center. When Scamihorn’s sister, Misty, was murdered, his father, Joseph Scamihorn Sr., who had health problems, became severely depressed. Scamihorn visited his father in Reno almost every weekend after Misty’s death. He eventually moved to Reno temporarily to help his father with his depression.Scamihorn met with Albertson’s HR manager David Moore to request an unpaid leave and completed a leave of absence form specifying that the time off was to deal with his father’s mental illness. Moore granted the leave but didn’t advise Scamihorn of his FMLA rights.
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Reinstatement Refused
During the leave, Scamihorn spent time with his father discussing Misty’s death, drove him to counseling sessions and did household chores such as shoveling snow and chopping firewood to heat the house. When Scamihorn returned to California a few months later, he sought reinstatement and seniority. Albertson’s, however, rehired him only as a probationary driver and refused to restore his seniority.
Employee Claims FMLA Violation
Scamihorn filed a lawsuit charging that Albertson’s violated the FMLA. He alleged that the grocer didn’t advise him of his FMLA rights. And, he claimed, because the FMLA protected his time off, he should have been reinstated to his former position and seniority level on returning. Albertson’s countered that the FMLA doesn’t cover the comforting kind of care Scamihorn gave his father. A trial court agreed with Albertson’s and dismissed the case, and Scamihorn appealed.
FMLA Covers Psychological Care
The Ninth Circuit said that Scamihorn’s lawsuit could go forward. The FMLA permits eligible employees to take leave to care for a spouse, child or parent who has a serious health condition, which can include severe depression. The court explained that caring for an ill family member encompasses both physical and psychological care. For example, it includes situations in which a family member can’t care for their own medical, hygienic or nutritional needs or can’t transport themselves to the doctor. It also includes providing psychological comfort and reassurance to a family member who is receiving inpatient or home care.
When an FMLA leave ends, the employee is entitled to reinstatement to their previous position or an equivalent one. An employee cannot lose an employment benefit, including seniority, that they earned or were entitled to before taking leave.
The court said there was evidence that Scamihorn cared for his father within the FMLA’s meaning. The court pointed out that at times Joseph Sr. couldn’t complete daily tasks and Scamihorn had to assist and comfort him. This included engaging in daily talks with his father about Misty’s death, performing chores around the house and driving his father to counseling sessions. Psychologists who treated Scamihorn’s father said Scamihorn participated in his father’s treatment through his daily conversations with his father and by being a constant presence in his father’s life. Thus, the court sent the case back to the trial court.
Practical Recommendations
This case serves as a reminder that the FMLA covers leave to provide psychological assistance and comfort to seriously ill family members. If an employee requests time off for this or other qualifying purposes, be sure to notify them of their rights under the FMLA. You can ask the employee for medical certification confirming that the family member has a serious health condition and that the condition warrants the employee’s assistance.