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Employee’s mother was assessed by social worker, not health care provider; no FMLA entitlement

By Kathleen Kapusta, J.D.

Stating that it was not its role to expand the scope of FMLA coverage, a federal court in Washington granted summary judgment against the interference claim of an employee denied leave to take care of his mother who was suffering from dementia. Although she had been assessed by a social worker, the social worker was not a health care provider as defined under the FMLA, and thus the mother was not under the continual supervision of a health care provider at the time the employee requested leave in order to care for her (White v. AG Supply Co. of Wenatchee, February 23, 2016, Rice, T.).

As a sales supervisor at a hardware store, the employee worked some evening shifts, which became an issue when a social worker advised him in July 2014 that this mother, who suffered from dementia, required 24-hour care. A day later, he told his supervisor he would be unable to work closing shifts and he needed a consistent work schedule to care for his mother.

Letter from social worker. Four days after that, on July 28, the employee gave his supervisor a letter signed by the social worker requesting that he “receive a consistent work schedule to allow for his mother’s plan of care,” with ideal hours between 8:00 a.m. and 5:00 p.m., Monday through Friday. Alleging that his supervisor told him he could only take leave in blocks of time, such as weeks or days, and believing that his schedule would not be immediately fixed, the employee submitted his two-week letter of resignation that same day. His last day of work was August 11.

On August 4, his mother was examined by a doctor, whom she had not seen for three years. He found that she had severe dementia and opined that she required 24-hour supervision. The employee subsequently sued, alleging that his employer interfered with his rights under the FMLA when it refused to modify his work schedule so that he could care for his mother.

Health care provider. The employer first argued that the employee was not entitled to FMLA leave because his mother was not under the supervision of a health care provider at the time of his leave request. Although the employee contended that his mother saw a doctor about a week after he put in his leave request and was admitted for inpatient care within a month, the court found that the undisputed evidence showed she was not under the “continuing supervision of . . . a health care provider,” and thus he was not entitled to take immediate leave when he so requested in late July.

While the social worker assessed his mother in late July, she was not a health care provider as defined under the FMLA, and his mother had not seen or been treated by the doctor, her main health care provider, for a three-year period, until her August 4 appointment. The fact that she received care and treatment starting after the employee’s leave request and resignation was insufficient under a plain reading of the Act and its implementing regulations, said the court.

Notice. Even assuming her subsequent medical care was sufficient to satisfy the FMLA’s continual supervision standard, the employee’s claim nonetheless failed because he did not provide adequate notice of his intent to take leave. At most, observed the court, he gave five days’ advance notice of his desire to take FMLA leave. Further, said the court, his reason for requesting leave was foreseeable. Not only did the employee admit his mother’s dementia existed since at least 2011, about eight months prior to the date when he first put his employer on notice of his leave request, he hired a part-time caretaker for her. And while the social worker first told him his mother needed 24-hour supervision on July 23, he admitted he began noticing changes in her condition months prior to that as he lived with her and personally witnessed the changes.

Although the court acknowledged that the employee was put in an untenable position, it pointed out that the FMLA does not provide a remedy for all leave requests, only those strictly within its coverage. Because his reason for leave was foreseeable, he was obligated to provide his employer with 30 days advance notice of his intent to take leave. He did not do this and thus his employer was permitted under the regulations to delay his leave request until 30 days after he first provided notice, which was several weeks after his resignation went into effect.