How could dementia not be covered under the FMLA? (Psst, I’ll tell you how).

The Family and Medical Leave Act allows eligible employees to take up to 12 weeks of leave in a 12-month period for, among other reasons, to care for a parent with a serious health condition.

Most FMLA serious health conditions are plainly obvious: Cancer, HIV, dementia. But, then again…

The other day, a subscriber decided that he’d had enough and unsubscribed from the email distribution list for this blog. Sure, from time to time, I do get people who leave. And that’s fine. But, what makes this one super special is the reason he listed for unsubscribing:

“The subject line of the emails is obnoxious.”

Now, this reader could have just checked off “no longer interested” from the pre-populated list of reasons unsubscribers are offered to identify the reason for leaving. Instead, however, he actually took the extra effort to type out that my free, daily blog emails that he’d been receiving for two years — and in those two years, he’d opened exactly two of those emails, one of which was apparently the straw that broke the camel’s back — offended him because of a subject line.

Do I sound bitter? Oh, no, it’s quite the opposite. Friends, not only does this pour gasoline on the flame of my love for Human Resources, but, I am one step closer to completing my bucket list. Now, if only I could get that Zoolander 3 cameo.

Anyway, where was I? Oh yes…

Was this employee entitled to take FMLA to care for a parent with dementia?

Mark White’s mom suffered from dementia. In 2014, a social worker assessed Mr. White’s mother and recommended 24-hour care. Subsequently, Mr. White sought a new work schedule to care for his mom. However, Mr. White’s schedule was not immediately fixed; so, he resigned with two-weeks’ notice. During that two-week period, a doctor examined Mr. White’s mom once. This doctor, who had not examined Mr. White’s mom for three years, found that she had “severe dementia” and opined that she required 24-hour supervision.

After he resigned, Mr. White sued his former employer for FMLA interference, claiming, among other things, that he was entitled to leave under the FMLA. Yet, he was never given FMLA leave.

The elements of a “serious health condition”

A “serious health condition” under the FMLA is “an illness, injury, impairment, or physical or mental condition that involves . . . (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.” This one here is easy peasy. Dementia has to be a serious health condition, right? Well, let’s see how the court applied the law to the facts (opinion here):

There was no evidence of inpatient care for Mr. White’s mom before his resignation. So, there goes (A).
Since Mr. White’s mother only saw a doctor once, that doesn’t count as “continuing treatment.”
And, the social worker, who provided “continuing supervision” to Mr. White’s mom was not a “health care provider.” That’s because the FMLA defines “health care provider” as “(A) 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 (B) any other person determined by the Secretary to be capable of providing health care services.” (Note: a clinical social worker would qualify as a “health care provider”).

So, in this particular case, dementia did not qualify as a serious health condition. Wow!

Employer takeaways.

FMLA is not for novices. The FMLA has very particular rules on eligibility, notice, certification, etc. Make sure that your employees satisfy the requirements of the statute before providing covered leave. If you need help with that, call an employment lawyer.
Avoid making exceptions. What happened to Mr. White doesn’t seem fair. Could the company have cut him some slack? Sure. But, what happens later when the employer takes a hard FMLA line with its other employee, Mrs. Orange? Treating similarly-situated employees differently could lead to discrimination claims.
Don’t forget the ADA. The Americans with Disabilities Act requires an employer to provide a reasonable accommodation to a qualified individual with a disability if doing so will allow that person to perform the essential functions of the job. Leave may be a reasonable accommodation. While the ADA would not apply in Mr. White’s situation, since he was not taking leave to care for himself, there may be situations in which the FMLA does not apply, but the ADA does. For example, maybe the employee has exhausted his FMLA, or he’s not otherwise eligible. In those situations, remember, that employee may still have ADA rights too.