Who cares…..for a covered family member under the FMLA as opposed to merely providing much appreciated assistance? The distinction is critical because absences “to care for” are protected by the FMLA while absences to assist are likely not.

Recall our recent post about an employee who took the day off to clean his mother’s flooded basement and argued his absence was protected under the FMLA because he was “caring for” his mom. The court rejected his argument because no evidence connected his mother’s hepatitis with his urgent need to clean the basement.

A recent case also rejected a son’s “caring for” argument.  In Chappell v. The Bilco Company, the employee claimed he should not have been terminated for absenteeism because he was “caring for” his mother, who has diabetes, on some of the days he was absent. The plaintiff had taken two days off to provide “comfort and support” to his mother after she attended a friend’s funeral because she was emotionally distraught and was having problems regulating her blood sugar.  The court rejected the plaintiff’s argument, noting that the changes in blood sugar were not a “serious health condition” and no evidence established “that he was needed to provide physical or psychological care for [his mother] as a result of her diabetes,” i.e., that the leave was medically necessary.

Another absence occurred on a day his mother had a medical appointment at 12:30 p.m. The plaintiff had an approved FMLA intermittent leave certification to transport his mother to and from doctors’ appointments.  His shift began at 6:30 a.m. The company had told him that he must report to work before and after the appointments, if possible.   On the day of the appointment, the employee did not report to work at all and explained that he made breakfast for his mother and  dressed her for the appointment. The court rejected the plaitiff’s argument that the conduct before transporting his mother to the appointment was “caring for” her, noting that his mother was able to dress herself and that plaintiff did not establish that it was medically necessary for him to make her breakfast.

“Who cares” and who does not is going to be decided on a case by case basis. In these two cases, the plaintiffs were unable to connect their assistance to their mothers’ serious health conditions. Other plaintiffs, in other circumstances, may be able to do so.