Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Wednesday, March 3, 2010

Trip abroad with ill husband for faith healing was not FMLA-protected leave

Tayag v Lahey Clinic Hospital, ____F.Supp.2d___(D. Mass.January 6, 2009), is an unusual case. An employee's seven-week trip to the Philippines with her husband (who has a serious health condition), ostensibly so that he could participate in a faith healing event at a Catholic "Pilgrimage of Healing Ministry," was not protected under the FMLA.

The employer required her to obtain FMLA certification supporting the need for leave. After being advised that the employer did not receive the information necessary to evaluate her leave request, the employee left for the Philippines anyway. Meanwhile, her husband's cardiologist sent the employer a medical certification stating the employee did not need to take leave to care for her husband. The employee was terminated for taking unapproved leave, and she filed suit, alleging, among other claims, FMLA interference and retaliation. Her claims failed, however: At no point during the entire trip did her husband receive medical treatment or visit a health care professional. While he did spend three and a half weeks attending the healing ministry, and "even if caring for a sick spouse on a trip for faith healing were protected because of its potential psychological benefits," nearly half of their trip was spent not in faith healing but visiting friends, family, and local churches. The FMLA does not permit employees to take time off to take a vacation with a seriously ill spouse, even if caring for the spouse is an "incidental consequence" of taking him on vacation. The employee's ADA associational discrimination claim failed as well; the court rejected her assertion that the employer violated the ADA by requiring her to produce "unnecessary medical verification" of her husband's condition. Being asked to produce additional paperwork, even if the request was unreasonable, does not constitute an adverse employment action under the ADA.

Mitchell H. Rubinstein

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