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FMLA denied for healing pilgramage

Joined
Jan 25, 2010
Messages
799
I thought this case was somewhat interesting.

Essentially this woman had taken 1-2 days FMLA leave to help her sick husband. Then she applied for vacation (apparently) to go on a religious healing pilgramage and took it.

Then she applied for FMLA to take her husband on a religious healing pilgramage and got fired.

There is more legal analysis under the article which I will leave you to read.
 
I looked at the link and seriously tried to understand the details for about 2/3 of the story. Eventually I became lost in the minutia, but I did learn that FMLA is an acronym for Family and Medical Leave Act.

Seems like exactly the kind of messy court cases that are always going to exist around these kind of acts where the government places limits on the right of people to make their own agreements. Given the law, it seems like the legal issue is do you get to count a trip to take your spouse to a faith healer as a protected form of leave under the act.

Unless the law specifically limits medical leave to leave to obtain mainstream medical care the trip might be protected under the law. I doubt that congress meant for it to be interpreted this broadly, but what does the law actually say about this? As a practical matter the court might just ignore the law and take the practical view that if this trip is allowed it will be difficult to place any limits on the use of the FMLA.
 
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I looked at the link and seriously tried to understand the details for about 2/3 of the story. Eventually I became lost in the minutia, but I did learn that FMLA is an acronym for Family and Medical Leave Act.
Agreed, it is a lengthy and minutia driven article.

Seems like exactly the kind of messy court cases that are always going to exist around these kind of acts where the government places limits on the right of people to make their own agreements.
FMLA does not prevent employers and employees from developing further agreements. My employer for instance provides a much less restrictive set of rules for medical and personal leave. FMLA merely establishes the minimum an employee may recognize. Under FMLA an employee is not even guaranteed the same position, merely same pay and a position of equal standing.

Given the law, it seems like the legal issue is do you get to count a trip to take your spouse to a faith healer as a protected form of leave under the act.
It is even more complicated than that. The law already recognizes alternative approaches to health via the Christian Science exclusion, and other instances of case law have allowed other religious minorities to take up the same excemption. The problem is if such alternatives count if an employee also accepts the validity of modern medical practice. Case law as it stands makes this an either/or situation, but her case is attempting to claim her religious beliefs should allow for both under FMLA.

Unless the law specifically limits medical leave to leave to obtain mainstream medical care the trip might be protected under the law. I doubt that congress meant for it to be interpreted this broadly, but what does the law actually say about this? As a practical matter the court might just ignore the law and take the practical view that if this trip is allowed it will be difficult to place any limits on the use of the FMLA.
Keep in mind that FMLA is not a law defining what sort of medical leaves are permissable, but defining what sort of medical leaves an employee cannot be punished by an employer for taking. I suspect the religious aspect of the case will not even be considered. My suspicion is that her employer will be deemed in the right by the fact she was not explicit of what her medical leave entailed. One of the easiest ways for an employee to lose FMLA protections is a failure to inform the employer in a timely manner of requested details barring emergencies that prevent this. Her situation was not such an emergency and considering the non-critical nature of the trip, it appears she makes no claim that a religious authority said she must take it immediately and without delay, once her employer began to investigate the situation she should have waited for it to finish.

I've seen in my industry individuals take similar FMLA time for spiritual healing in addition to modern medicine and run into no issues. The employer is allowed to approve leaves beyond the letter of the law. Of course, the major difference in these cases is that these individuals fully expressed what their leave consisted of and my industry generally can afford to flat out replace someone but still take them back in three to six months. More than anything I think her case fails on not informing her employer she was taking her husband on a healing pilgrimage and failed to keep in contact while away.
 
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She tried to abuse the system and got fired.

That certification, from Tayag's cardiologist, stated that Rhomeo was "not incapacitated" and Tayag did not require leave, although her presence could "possibly" provide psychological comfort. Since nothing in Dr. Dong's certificate provided a basis for a seven-week leave and the cardiologist had disavowed the need for any leave, Lahey was justified in denying FMLA leave.

Then she is claiming she was fired in retaliation for requested the leave. I would think the facts look as if she was fired for taking the leave when denied not for requesting.

Tayag's second claim--retaliation--is both underdeveloped and confusingly framed; she says that the discharge was retaliation for requesting and taking leave.
 
Non-minutia driven explanation of FMLA ;)

Eligible employees are entitled to:

* Twelve workweeks of leave in a 12-month period for...
o to care for the employee’s spouse, child, or parent who has a serious health condition

It does sound as though the employer prevailed because of the failure to notify, but I wonder if the purpose of the trip might have influenced her eligibility.

Here's the medical certification. It sounds iffy to apply for leave to go on a long trip that has no medical purpose--the husband's need for the employee to take leave to care for him is caused by the trip itself. Otherwise he'd be home and fine, with occasional need for her to take a day or two off to bring him to medical appointments.

If he wanted to go to the Super Bowl, would she be eligible to take leave to care for him while he did that?

[But this is not my area of expertise.]
 
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I agree with Eeyore. It may not have been intentional, but by providing limited information to her employer about what the leave actually entailed she was not using the system as intended. The timeline implies she was fired for taking an unapproved leave, not for the request. That is a very difficult claim for her to substantiate considering she was fired when she failed to respond to her leave losing approval after investigation, not upon request. As I said, I doubt the appeals process will address the religious aspect any further than has been done in previous cases. I suspect the lack of paperwork from priests provided to her employer effectively shuts down her appeal.

IANAL though.
 
It does sound as though the employer prevailed because of the failure to notify, but I wonder if the purpose of the trip might have influenced her eligibility.
From what I can tell, the termination occurred long before the actual purpose of the leave was ever brought to the employer's attention. They were never given the opportunity to approve such a trip. This is one of the major pitfalls for employees in requesting, making sure your requests are all in order. Otherwise your defense can easily fail. I could probably negotiate an unpaid leave with my company to take care of an ailing uncle or aunt. However that is not normally covered under FMLA. If I were to place such a request under FMLA and make it appear I was taking leave to care for a relative normally covered under FMLA protections I would likely be termintated if it came to light. Even if it was an unintentional misrepresentation.
 
Paperwork from priests can influence eligibility? I thought it had to be medical certification only? Wouldn't that be a violation of church and state separation?

This is the part that originally interested me:
Tayag properly does not claim that caring for her husband would itself be protected leave under the FMLA if the seven-week trip was for reasons unrelated to medical treatment of Rhomeo's illnesses.*fn2 So, if the focus is on substantive protection, the result depends on whether a "healing pilgrimage" comprises medical care within the meaning of the FMLA.

Under the statute and associated regulations, the answer is no. The statute defines "health care provider" as "a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or . . . any other person determined by the Secretary to be capable of providing health care services." 29 U.S.C. _ 2611(6). Similarly, a "serious health condition" is "an illness, injury, impairment, or physical or mental condition that involves . . . inpatient care in a hospital, hospice, or residential medical care facility; or . . . continuing treatment by a health care provider." Id. 2611(11).

Faith healing is addressed solely in the regulation identifying others "capable of providing health care services," which includes "Christian Science practitioners" subject to certain conditions. 29 C.F.R. _ 825.118. Christian Scientists reject ordinary medical care as defined by the statute and so, as to a Christian Scientist patient, there is no duplication either for government insurance programs or for employers providing FMLA leave. Tayag's husband gets ordinary medical care, and she has taken full advantage of the FMLA to provide assistance to him in connection with that care.

Further, Tayag does not invoke the Christian Science exception to cover her situation--her husband is not a Christian Scientist--but as the basis for a constitutional argument.
 
That is part of the problem here. She is claiming a new interpetation of the law that if it were in effect, which it is not, would in fact require certification from a priest or whoever approves such non-medicinal healings, even if such a person was the individual going on the piligrimage. No such paperwork was ever filed. It would not run afoul of separation of Church and State since the general practice of that is that the State cannot choose to only recognize one Church, it must recognize all churches and non-churches equally. For instance, states can recognize a Church ceremony as fulfilling ceremonial requirements for marriage as long as other Church and non-Church ceremonies are also recognized for this purpose.

FMLA does not require employers to demand paperwork, but it gives them the right to do so. Her appeal is demanding a new interpetation, one that allows people to take both medical based and spiritual instead of either/or. There may be a Constitutional sound arguement for this, but I doubt it will even be addressed. If such an interpetation were in effect, her termination would still likely have been legal considering her request for leave made no mention of the healing pilgrimage and during follow up by the employer no response was given.

If she had requested FMLA for both medical purposes and the healing pilgrimage, this would be a more interesting case. As it stands, she only mentioned the medical purpose of her leave and the shear length of the leave was not substantiated by the applicable medical authorities.

As an example of another way to take legally permitted leave illegally, one could request FMLA to care for a pregnant girlfriend up to three months but if it turns out one specified a girlfriend who was not pregnant but still spent the time caring for an additional girlfriend that was one could be legally terminated. Employers have a right to know the purpose of any leave taken under FMLA, and failure to reasonably and timely provide documentation of that purpose can lead to legal termination even in the case of an otherwise legally protected type of leave under FMLA.

ETA: In other words, tell the truth when requesting leave. When requesting legally protected leave do not omitt any aspect of the leave.
 
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It seems like the case might have involved a few interesting issues except that this all seems moot right now and the fact seems to be she has no case because she did not apply for this leave in the required way.

So why has this case been brought? Courts do wave technicalities on occasion either because they think the technicalities are insignificant or because they are willing to ignore the law to promote their view of what should be. Is that what her lawyers are looking for or is she arguably in compliance with the rules concerning the application for the leave?
 
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