New York Employment Lawyer Blog

I recently came across a very interesting article on Carl Bosland's blog. This article discussed the recent case of Bell v. Prefix, Inc., No. 05-74311, 2007 U.S. Dist. LEXIS 52837 (E.D. Mich. July 23, 2007) where the issue of whether the FMLA covers an employee's need for leave to provide psychological comfort and care to an unconscious parent was addressed. There, Bell's father fell after suffering an aortic aneurism. He was granted FMLA leave to attend to his father's health care and hospitalization. Bell left work early to be with his father the night before surgery. He discussed the surgery with his father. He returned to visit his father after the surgery. His father fell into a coma after the surgery. He remained in the coma until his death a few weeks later. On several occasions, Bell was granted FMLA leave to visit his father. His father was at all times incoherent and unable to visibly react to Bell's words. During these visits, Bell would discuss his father's condition and care with hospital staff, including approval of care. Bell was subsequently terminated allegedly due to a downsizing of his department. He sued, alleging that his dismissal was due to his use of FMLA leave.

Prefix argued that Bell's leave was not protected by the FMLA. It argued that he did not provide physical or psychological care because his father was comatose. Under established case law, merely visiting a sick parent does not, the employer argued, constitute providing care within the meaning of the FMLA. The court disagreed.

The time Bell spent with his father was psychological care. The court rejected the argument that the failure of a parent to visibly respond demonstrates that psychological care was not given during their post-surgery interactions. "Taken to its logical conclusion, Defendant's argument would leave the FMLA without an allowance for psychological care if the loved one was unable to visibly react to it." The court also noted that Bell did provide psychological care to his father before surgery when his father was conscious. It also noted that he participated in medical decisions for his father post-surgery, which is also covered by the FMLA.