Rudman Winchell Employment Law Update: FMLA and “Needed to care for”

By Rudman Winchell Attorney

By Rudman Winchell Attorney Anne-Marie L. Storey

A case recently decided by the Sixth Circuit Court of Appeals highlights an interesting issue about the “needed to care for” provision of the federal FMLA.  The issue in that case was whether one of the days the employee was marked as absent was in fact protected as an FMLA-related leave day.  On that day, the employee was at the hospital with his mother, who was on life support.  His primary purpose for being there that day was to confer with his sister about whether to continue the care.  

The trial court determined that this did not constitute “caring for” a family member under the FMLA because the Act does not provide coverage for multiple family members to be present to care for a family member at the same time.  In other words, since his sister was there to “care for” the mother, he did not need to be.  The appellate court reversed this decision.    It found that the FMLA regulations do allow for more than one family member to be present at the same time and that the reason for the leave was covered.   Had that absence not been counted, the employee would not have been disciplined for excessive absences.  Thus, the employee’s claim of interference with his FMLA was allowed to proceed. 

As noted in the appellate decision, the regulations interpreting the FMLA say that “The employee need not be the only individual or family member available to care for the family member or covered service member.”  Therefore, although this case is not necessarily binding on Maine courts, denying leave to an employee who is caring for a family member solely on the basis that another family member is also present is generally not advisable. 


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