Ninth Circuit Court Clarifies What Activities Constitute “Care for a Family Member” Under the FMLA

Volume 4, Issue 9
July 29, 2005

In Tellis v. Alaska Airlines, Inc., No. 04-35137 (9th Cir. July 12, 2005), the U.S. Court of Appeals for the Ninth Circuit provided guidance as to the type of activities that constitute care for a family member with a serious medical condition entitling employees to leave under the Family Medical Leave Act ("FMLA").

Charles Tellis was employed by Alaska Airlines in Seattle, Washington as a maintenance mechanic. When his wife began having difficulties with her pregnancy, Tellis told his supervisor he needed to take a couple of weeks off. The supervisor told Tellis to obtain the necessary FMLA forms from the company's health benefits office. However, Tellis initially left a holiday and vacation leave request form seeking three days off. The following day, he called the company to request FMLA leave forms, which were sent to him. Several days later Tellis' vehicle broke down. As he owned another vehicle in Atlanta, he flew to Atlanta and drove the vehicle back to Seattle calling his wife along the way. In the interim, his wife gave birth. Tellis was scheduled to report to work after his three days of requested leave. When Tellis failed to return, Alaska Airlines attempted without success to contact him. He was subsequently terminated eleven days after he was supposed to have returned to work.

Tellis argued that his leave was covered under the FMLA because it was taken to "care for" his wife. He asserted that his trip to retrieve another car provided psychological reassurance to his wife that they would have reliable transportation and that his phone calls to his wife on the trip back from Atlanta provided moral support. The Ninth Circuit Court disagreed, finding that "providing care to a family member under the FMLA requires some actual care which did not occur here. . . Instead of participating in his wife's ongoing treatment by staying with her, he left her for almost four days." The Court held that the "care for" requirement of the FMLA necessitates a level of close and continuing proximity to the ill family member. Thus, it concluded that travel away from the person needing care was unprotected under the FMLA.

This opinion is favorable to employers as it clarifies what will and will not be recognized to constitute physical and psychological care of a family member with a serious health condition under the FMLA. However, the decision should not be read so broadly as to exclude the running of errands for a family member when the majority of the employee's time involves some level of participation in the ongoing treatment of the family member's condition, including psychological comfort and reassurance.

The full decision of the Ninth Circuit Court in Tellis v. Alaska Airlines, Inc., No. 04-35137 (9th Cir. July 12, 2005) is available at:$file/0435137.pdf?openelement

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