Charles Tellis, an Alaska Airlines maintenance mechanic in Seattle, told his supervisor on July 4 that he needed time off because his wife was having difficulties with her pregnancy. His supervisor suggested Tellis contact the benefits department about taking leave under the Family and Medical Leave Act (FMLA). Later that evening, instead of showing up for his scheduled shift, Tellis left a written request for holiday and vacation leave for July 5, 6, and 7. On July 5, Tellis contacted the benefits office to request FMLA leave, and they sent him the appropriate forms.
Trip or Care?
On July 6, Tellis’s car broke down. He decided to fly to Atlanta to pick up another car he owned and drive it back to Seattle. He flew out the evening of July 6 and arrived back on July 10. On July 9, Tellis’s wife gave birth to a baby girl. Tellis had called his wife regularly by cell phone while on the road from Atlanta.
Tellis’s next scheduled shift after his three days of requested leave was July 11, but he didn’t come to work that day. Alaska tried to contact him without success and then terminated him for unexcused absences.
Employee Says Leave Was Protected
Tellis sued, charging that his termination violated his FMLA rights to take time off to care for his pregnant wife. Alaska asked the court to dismiss the case, arguing that the leave didn’t qualify under the FMLA because Tellis didn’t actually provide care for his wife. Tellis countered that he did care for his wife as the FMLA required because his trip to Atlanta provided psychological assurance to his wife that she would soon have reliable transportation, and his frequent phone calls home provided moral support and psychological comfort.
Actual Care Required
Now the Ninth Circuit Court of Appeals, which covers California, has thrown out the suit.1 The court explained that under the FMLA, an eligible employee may take up to 12 weeks of leave during a 12-month period to “care for” a family member with a serious health condition. The nature of this care can be both physical and psychological, but it must involve some actual care, including a level of participation in ongoing treatment of the health condition. The court went on to say that courts around the country have concluded that for a particular activity to amount to caring for an ill family member, the employee must be in close and continuing proximity to the person.
The court concluded that Tellis’s activities were not “caring for” his wife because instead of participating in her treatment by staying with her, he left for four days. Neither his trip to Atlanta nor the phone calls amounted to participation in her medical care. And, although traveling to obtain a working vehicle may have provided psychological reassurance, “that was merely an indirect benefit of an otherwise unprotected activity—traveling away from the person needing care.”
How To Survive an Employee Lawsuit: 10 Tips for Success
With lawsuits against employers becoming ever more common—and jury verdicts skyrocketing—your risk of getting sued has increased dramatically even if you’ve done all the right things. Learn how to protect yourself with our free White Paper, How To Survive an Employee Lawsuit: 10 Tips for Success.
Practical Recommendations
Caring for a seriously ill family member can include both physical and psychological care under the FMLA, as long as the employee maintains some level of participation in the family member’s treatment and remains in close and continuing proximity to the person. Note that although this case arose only under the FMLA, the result would likely be the same under the California Family Rights Act, which contains similar language regarding the requirement to care for an ill family member.
If an employee requests time off for this or other qualifying purposes, be sure to notify the person of his or her rights under the FMLA. You can ask the employee for medical certification confirming that the family member has a serious health condition warranting the employee’s assistance. For a “Family Care Leave Certification of Healthcare Provider” form, designed for use in California, see the CEA Special Report “Compliance Guide to the Federal Family and Medical Leave Act and the California Family Rights Act.”
(1) Tellis v. Alaska Airlines, Inc., U.S.C.A. 9th Cir. No. 04-35137, 2005