Ninth Circuit Examines Scope of “Caring for Family Member” in Finding Employee May Have Claim Under FMLA

Volume 1, Issue 5
March 7, 2002

The Family and Medical Leave Act (FMLA) provides that an employee, under certain conditions, is entitled to unpaid leave in order to provide care to a family member suffering from a serious health condition. In a recent decision, the Ninth Circuit examined when an employee may be deemed to be “caring” for a family member, and therefore covered by the FMLA. The employee, a truck driver for Albertson’s, took an extended leave of absence to care for his father who was suffering from severe depression following the murder of the employee’s sister. Though the father could regularly drive himself into the office and otherwise fulfill his own job duties, there was evidence that he did suffer episodes during which he could not otherwise take care of himself. The employee in question would often chop wood, tend to other household chores, drive his father to therapy sessions, and otherwise comfort his father through daily discussions concerning the death of his sister. When the employee returned from leave, Albertson’s refused to return him to his position with full seniority, and placed him on probationary status in accordance with the collective bargaining agreement.

The lower court determined the employee did not qualify for FMLA protection as he had not “cared for” his father within the meaning of the Act. However, upon review, the Ninth Circuit took note that the policy behind the FMLA was to alleviate the tension between work demands and family needs. Specifically, the court disagreed with Albertson’s assertion that “caring for a family member” requires some level of physical participation in the ongoing treatment of a serious health condition. Rather, the court interpreted the FMLA regulations to cover not only physical, but also psychological care, which is often represented by the mere presence of a family member. As such, the Ninth Circuit held the employee could proceed with his case because there was a material question of fact as to whether he was assisting in the care of his father’s depressive condition.

For Nevada employers, this case highlights the broad coverage the Ninth Circuit applies to the FMLA. It is important to remember that the FMLA not only provides protections when an employee is suffering from his or her own serious health problem, but also applies when employees are caring for family members. More importantly, employers should recognize that the Act will likely apply even if an employee is not engaged in the physical care of a family member.

Scamihorn v. General Truck Drivers, et al. , No. 00-55722 (9th Cir. March 4, 2002).

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