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Here are some of the more interesting federal court decisions interpreting the Family and Medical Leave Act (FMLA) since our last issue of Insight.

Faith Healing Trip Not Covered By FMLA. In Tayag v. Lahey Clinic Hospital, the U.S. Court of Appeals for the First Circuit affirmed summary judgment in favor of the employer where the employee was discharged while taking a seven-week leave to the Philippines to accompany her husband on a spiritual healing trip. The leave included a series of healing pilgrimages (including a visit to a Catholic church known for its healing abilities) along with incidental socializing. The case turned on whether the healing pilgrimages were comprised of medical care within the meaning of the FMLA. The court found they were not. The court concluded that the FMLA regulations’ faith-healing exception for Christian Scientists who reject ordinary medical care and seek treatment through their faith did not apply because the plaintiff and her husband were Catholics who accepted both traditional medicine and faith healing. The court also found that the employee’s claim failed because she did not comply with FMLA certification procedures.

Employee’s Remarks Failed To Put His Employer On Notice. In Wilson v. Noble Drilling Service, Inc., the U.S. Court of Appeals for the Fifth Circuit dismissed an FMLA retaliation lawsuit where the employee failed to make his employer aware of his need for FMLA leave. Wilson told his supervisor that he “might” need to take leave to care for his soon-to-be born child if his alternative child care arrangements fell through. A month later, he was discharged when he upset his supervisor by complaining to upper management about his pay. The court noted that the close proximity in timing between the alleged protected activity (his mention of a possible need for leave) and his discharge might provide the requisite “causal connection” needed to establish a FMLA retaliation claim. However, the FMLA claim failed because Wilson had not given sufficient notice to make the employer aware of his need for FMLA leave. Instead, he had merely commented that he “might” need to take unspecified leave and there was a “possibility” he would need to do so. The court noted that Wilson had never informed his management that he actually intended to take leave or the anticipated timing and duration. Consequently, his FMLA retaliation claim failed.

Employee Failed To Respond To His Employer’s Inquiries. In Righi v. SMC Corporation, the U.S. Court of Appeals for the Seventh Circuit upheld the dismissal of an employee’s FMLA claim where the employee was absent for several days attending to his ill mother, but had failed to specify how much leave he would need and did not respond to his supervisor’s repeated phone calls to inquire about the duration. Righi had sent an email to his employer stating that he was going to be absent for “a couple of days” to care for his mother. He mentioned that he had vacation time available and that he did not want to apply for family leave “at this time.” He was then absent for six work days, during which he failed to respond to 15 phone calls asking for more information. He was discharged upon his return. The court held that, while his email to his employer stating he did not want to take family leave was not an unequivocal waiver of his FMLA rights, and that it could be sufficient to trigger the employer’s duty to make further inquiry, the employer undisputedly had done so by placing numerous calls to Righi, and that Righi’s complete failure to respond doomed his FMLA claim.

Too Many Return-To-Work Inquiries Support FMLA Interference Claim. Employers must carefully approach employees who are on FMLA leave to inquire about return-to-work status — lest it be viewed as pressuring the employee to return before he or she is ready. In Terwilliger v. Howard Memorial Hospital, the employee took an approved FMLA leave for back surgery. While she was out on leave, her employer called her every week to ask when she planned to return to work and to suggest she return as soon as possible. Shortly after returning to work, Terwilliger was discharged for stealing, an accusation she denied and claimed was a pretext. In allowing her FMLA interference claim to proceed to trial, a U.S. District Court in Arkansas held that the employer may have improperly discouraged or chilled Terwilliger’s exercise of her FMLA rights. The court dismissed her FMLA retaliation claim, however, because the evidence established that the decision-maker who fired Terwilliger honestly believed she was guilty of an attempted theft, which was a termination offense under the hospital’s policy.

Absences For Substance Abuse Versus Treatment Of Abuse. In Picarazzi v. John Crane, Inc., a U.S. District Court in Texas held that an employee fired for absenteeism due to substance abuse-related absences could proceed to trial on his FMLA retaliation claim. On April 1, Picarazzi began an FMLA leave to enter an alcoholism treatment program. His leave was set to expire on June 23, and he was to give his employer a status update every 30 days. Picarazzi was released from the treatment facility on April 23, and his doctor released him to return to work on April 30. Due to relapses, however, he returned to the treatment facility from April 30 to May 8 and again from June 9-15. On several days between and after these periods, though, Picarazzi was absent from work. His employer considered the time when he was in actual treatment as approved FMLA leave, but not the days when he had relapsed and was not undergoing treatment at the facility. For the latter, he was assessed attendance points, and this ultimately resulted in his termination. Relying on the FMLA regulation providing that absence because of the use of a substance, rather than for treatment, does not qualify for FMLA leave, the employer argued that it had properly assessed the points. The court disagreed and held that the regulation does not require the employee to be enrolled in the treatment facility on each day of his leave for it to qualify as FMLA leave. The court also found that Picarazzi could show that his absences were FMLA-covered based on his employer’s representations that that he was eligible and approved for leave through June 23. Accordingly, Picarazzi was allowed to present his case to a jury.

Shannon V. Loverich