🔒Defining ‘care’

Under the federal Family Medical Leave Act an employee is allowed to take time off when "needed to care for" a family member with a serious health condition or a covered servicemember with a serious injury or illness. Recent court decisions have tested what this phrase means.

Generally, "needed to care for" covers physical and psychological care and includes situations where the family member is unable to care for his own basic medical, hygienic or nutritional needs, or safety, or is unable to transport himself to the doctor. It includes providing psychological comfort and reassurance, which would be beneficial to a family member who is receiving inpatient or home care.

It can also include situations where an employee may be needed to substitute for a caregiver, or to make arrangements for changes in care, such as a transfer to a nursing home. The leave can be intermittent or on a reduced schedule and can include situations where the condition of the person who needs care is intermittent. But it also allows for situations where the employee is only needed intermittently, such as when other care is available, or responsibilities can be shared with other family members or a third party.

The employee does not have to be the only person available to care for the family member; their time can still be covered under the FMLA even if other family members are present to provide care. For instance, a decision from Pennsylvania earlier this month held that an employee was needed to care for her mother, who had been taken to an emergency room, even if there were other family members at the hospital who could provide the same support. The same decision was reached earlier this year by the Sixth Circuit, which held that an employee's leave to be present at a hospital with her mother was still covered under the FMLA despite the fact that the employee's sister was also present.

Simply being at the hospital where a family member is hospitalized can be covered even if no other care is rendered. A decision in Maine denied summary judgment to the employer where an employee "hung out" in his father's hospital room for one day. At that stage in the case, the court could not rule out the possibility that the employee was providing comfort and reassurance, particularly when the father submitted an affidavit stating that the employee's visit was "very comforting and reassuring."

Likewise, an employee was covered when he spent the day at the hospital with his critically ill father who was supposed to have surgery but ultimately did not. The court rejected the employer's argument that the time was not covered because the surgery never happened, finding that the employee was still needed to care for his father since the need for surgery was being assessed on a day-by-day basis and the employee was playing a role in that decision. In addition, even though the surgery did not happen, the employee spent the day caring for his father and was therefore covered despite the fact that he left the hospital before his shift at work would have started and he was seen at a bar drinking during the time of his shift.

When care isn't covered

Preparing for a family member's return home from a hospital may not be covered.

In a case from the Fifth Circuit, an employee and his family were on vacation out of state when his daughter had an accident resulting in a serious head injury. The time the employee spent with her at the hospital in the other state was covered under FMLA. However, during that covered period the employee returned home to prepare the house for her arrival. The employer argued that preparation time was not FMLA protected, despite the employee's claim that it fell within the "needed to care for" provision. The court held that "caring for" requires the employee to provide "some actual care" while in "close and continuing proximity to the ill family member" and found that preparing for the child's arrival home did not constitute "care" as intended by the act.

In addition, in order to provide the care necessary to be covered under this section, the family member has to actually need that care. In a case from Nebraska, an employee argued his absences were covered by this section because he was providing care to his father, who had Stage IV cancer. Despite the employee's claims, the evidence showed that the father was active on his own and did not need such care, and that the employee alleged he provided care on dates when the father was actually traveling without the employee. The court ultimately found the employee was not "needed to care for" his father and his absences were not covered.

As with many provisions of the FMLA, "need to care for" can be interpreted broadly but not without some limitations. An independent evaluation of these claims is necessary as the conclusion will largely depend on the specific of each case.