Employee's alerting the employer "after-the-fact" failed to place the employer on notice that the employee may have been seeking FMLA leave

Employee's alerting the employer "after-the-fact" failed to place the employer on notice that the employee may have been seeking FMLA leave Source: The FMLA Blog – http://federalfmla.typepad.com/fmla_blog/ Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation. Joe Lane requested and was granted six months of intermittent FMLA leave to "care for " his mother, who suffered from diabetes, high blood pressure, weight loss, and arthritis. The medical certification he provided established that Lane would use the leave to assist his mother with meals and take her to doctors appointments, which he did without incident for approximately four months. Lane was absent four consecutive days beginning July 23, 2008. In violation of company policy, he did not call in his absences. When contacted, Lane explained that he took the last three consecutive days off because of flooding in the basement of his mother's home where he was staying. The company fired Lane. Lane sued, alleging that his termination interfered with his FMLA rights as he should have been granted FMLA leave for the three-day period to clean up the flooded basement. He argued that he needed to clean up the basement because the sitting water was a breeding ground for disease that would aggravate his mother's hepatitis. An immediate problem was Lane's concession that he had not previously informed the company that his mother suffered from hepatitis. The company moved for summary judgment, arguing that the absence to clean up the flooded basement was not covered by the FMLA. The court agreed with the company. The court initially noted that the absence to clean up the flooded basement fell outside the parameters of his approved certification for FMLA leave to provide his mother meals and take her to doctor's appointments. The court further noted that Lane had failed to offer evidence establishing that cleaning his mother's flooded basement fell with the FMLA's definition of "needed to care for" a covered family member due to a serious health condition. He did not offer evidence to back up his claim that his mother suffered from hepatitis, how such a condition constituted a "serious health condition" within the meaning of the FMLA, or how his mother's hepatitis was in danger of being aggravated if Lane did not immediately clean the flooding. Nor did he establish how cleaning the flooded basement fell within the requirement that physical or psychological care address the basic medical, hygienic, nutritional or safety needs of his mother. 29 CFR 825.124(a). Finally, the court found that alerting his employer (after-the-fact) that he needed leave to clean his mother's flooded basement failed to place the employer on notice that the employee may have been seeking FMLA leave. Lane v. Pontiac Osteopathic Hospital, Case No. 09-12634 (E.D. Mich. June 21, 2010). http://scholar.google.com/scholar_case?case=16361142005570212643&hl=en&as_sdt=2&as_vis=1&oi=scholarr Mr. Bosland Comments: The decision demonstrates that, while broad, the "caring for" component of FMLA leave is not unlimited. Note the court's interest in the absence of evidence establishing how cleaning the flooded basement "cared for" the mother's condition. Courts have generally favored activities that directly provide care to the seriously ill family member over those, such as in this case, that may only indirectly provide physical or psychological care. Arguably, by cleaning up the mess himself, Lane may have relieved his mother from performing an activity that, with arthritis, she could not perform easily, if at all. He may have also provided her psychological care by relieving her of this responsibility. Sitting water may have presented safety issues as well. Apparently, these arguments were not sufficiently developed for the court. One could argue that the court's interpretation of "caring for" is overly restrictive. For example, Lane goes over to his mother's home to make her a meal. In addition to providing her with physical care (the meal), he is providing her with psychological care by being with her. While his mother eats he goes down into the basement for something. In so doing, has he lost FMLA protection because he momentarily left the room where his mother is eating? Is physical and psychological care so limited? If Lane made lunch and, while his mother was eating, he slipped out of the house to get the mail from the mailbox at the curb, can he be fired for exceeding his medical certification? What if Lane was taking care of his mother a great distance from where he lived and worked and could not get back to work easily. Do FMLA protections turn on and off like a light switch depending on whether Lane is in the room with his mother? Is that what the FMLA is all about? At the end of the day, Lane's failure to call-in his absence for four consecutive days without a credible explanation likely doomed his FMLA case.

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