While the Family and Medical Leave Act (FMLA) has provided a legal guarantee to leave for millions of employees that had a legitimate basis for making a leave request, it has also been a vehicle used by less than honest employees to abuse the system and obtain leave for illegitimate purposes.

One area of the FMLA that has been prone to abuse is the right to leave to care for a seriously ill family member (spouse, son, daughter, or parent).  For most employers, it is very difficult to verify that an employee is actually using the leave to care for the ill family member.  Even the recently revised Department of Labor regulations on the FMLA does not provide employers with much assistance.

Three cases decided in the last year give hope to employers that the courts will apply reason to FMLA abuse cases that come before them.  These cases may provide a path for employers to follow when they suspect an employee is making a fraudulent claim for FMLA leave for the care of a seriously ill relative. In these cases, the employee applied for and was approved FMLA leave to assist a seriously ill relative; however, once it was discovered that the employee was not using the leave to care for the seriously ill relative, the courts ruled that the employers properly concluded that the employee was ineligible for leave under the FMLA and was not protected from disciplinary action, including termination.

The FMLA permits an eligible employee to take up to 12 weeks of unpaid leave “in order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.” 29 U.S.C. § 2612(a)(1)(C).  The regulations explain that both physical and psychological care is covered when “an employee is ‘needed to care for’ a family member.” 29 CFR 825.124.

1. In Baham v. McLane Foodservice, Inc., 431 Fed. Appx. 345, 348 (5th Cir. 2011), Girard J. Baham, Jr.’s daughter was severely injured during a family vacation in Honduras.  She was airlifted to Miami, Florida for treatment.  Mr. Baham requested, and was granted, FMLA leave so he could tend to his daughter while the family was in Florida.  However, he eventually left his family and returned to Texas.  He did not let his employer know that he returned to Texas.  Instead, he went back to work three weeks later, but was subsequently terminated for abandoning his job.  Braham’s FMLA claim was dismissed.  The United States Court of Appeals for the Fifth Circuit affirmed the lower court’s finding that Mr. Baham was ineligible for FMLA because he did not provide any care for his daughter when he left her in another state and returned to Texas.  During that time, his wife and parents were caring for her.  In fact, the real reason he returned home was in response to complaints from his homeowner association about his home’s unkempt yard.  That he remained in constant telephone contact with his wife and daughter was insufficient to show that he provided needed care during that time.

2. The testimony of family members can be most damning to an employee’s claim for FMLA leave.  When the family member shows that she can care for herself without the spouse’s help, a Florida District Court decided that there is no FMLA protection.  In Hoopingarner v. Corinthian Colleges, Inc., 2012 U.S. Dist. LEXIS 59688 (M.D. Fla. 2012), Mr. Hoopingarner applied for and was approved for FMLA leave to care for his seriously ill wife.  However, through the wife’s testimony, it was shown that Mrs. Hoopingarner took care of herself for the most part.  Specifically, she cared for herself for one month when her husband was on FMLA leave assisting his mother.  She also went an entire year without her husband’s care while she was living with her boyfriend.  Mrs. Hoopingarner also testified that she did not believe her husband needed to take any time off from work to care for her.  The final nail in the employee’s coffin was the fact that Mrs. Hoopingarner found her husband to be “verbally and emotionally abusive.”  Based on this testimony, the Court dismissed Mr. Hoopingarner’s FMLA claims seeking relief for his wife’s care.  The Court found that “Mrs. Hoopingarner was fully capable of providing for her basic needs, that she frequently got by without any care provided by Plaintiff, and that any care Mrs. Hoopingarner desired could have been provided outside of working hours.”

3. Summary judgment was also upheld in Miller v. State Dep’t of Econ. Dev., 2012 U.S. App. LEXIS 7532 (8th Cir. 2012) based on the testimony of the sick father’s longtime companion and her daughter.  Both testified that the father took care of his own medical, hygienic and nutritional needs during his son’s FMLA leave time.  They saw the father bathe, shampoo and comb his hair, brush his teeth, take his medication, dress himself, feed himself, use the telephone, shop for groceries, and use the restroom, all without his son’s assistance.  Indeed, the father had a grand time without his son’s help.  He would frequently take long-distance vacations, attended a pool party, enjoyed a wedding, and participated in a graduation celebration without his son.

Now that courts are dismissing claims when there is no evidence that the plaintiff “cared for” a relative in the manner set forth under the statute, employers that suspect abuse may wish to investigate whether the employee is using the FMLA leave for the reason sought, including speaking to the seriously ill relative and others that may live with the relative.   In the event that an employer is required to defend litigation arising from an FMLA situation, defense counsel should obtain critical testimony from the relative, the relative’s doctors, and other family members during discovery to show that the plaintiff’s care was unnecessary.  Accordingly, defense counsel should carefully explore the precise manner in which the plaintiff provided care to a sick relative.

In sum, exploring the manner in which the plaintiff provided care and whether the relative believed that the plaintiff’s care was needed can be crucial in defending a FMLA claim.  It is worthwhile and necessary to depose the plaintiff’s relative, the relative’s doctor, and other family members who can testify as to the manner in which the plaintiff cared for the relative and whether such care was needed.  The best evidence may come from the plaintiff’s family.

For more information on how this may impact your business, please contact:

• Sean P. Beiter (716.566.5409; sbeiter@goldbergsegalla.com)
• Or another member of Goldberg Segalla’s Labor and Employment Practice Group