by Michael Fox
And an Alaska Airlines maintenance mechanic exceeded them when the days he took off to spend with his pregnant wife were diverted into a cross country trip to Atlanta to return a car he had there to his Seattle home. The fact that he called his wife regularly during the trip, or that having a working vehicle might be "psychologically reassuring," were not enough to bring him within the protective cover of the FMLA. Tellis v. Alaska Airlines, Inc.(9th Cir. 7/12/05) [pdf].
The Court relied on its previously articulated standard, "Interpreting this rule, we have previously stated that caring for a family member with a serious health condition “involves some level of participation in ongoing treatment of that condition.” Marchisheck v. San Mateo County, 199 F.3d 1068, 1076 (9th Cir. 1999).
The Court also took the pains to quote from a California state court decision reviewing the state equivalent regulation to point out there is an additional element -- the assistance must have at least some relationship to the family member's medical care. In finding that time spent moving her mother to a one story apartment from a two story house to minimize the need for on-going at home assistance was not protected, the state court wrote:
Pang’s admissions make clear that she was not there to directly, or even indirectly, provide or participate in medical care for her mother. Instead, she was there to help pack her mother’s belongings and tell the movers where to place her mother’s furniture. While Pang’s presence may have provided her mother some degree of psychological comfort, this was merely a collateral benefit of activities not encompassed by the Commission’s regulations.
For those concerned about 'loopholes' in the FMLA that are easily exploited decisions of this nature are at least some comfort. Unless of course the 9th Circuit, as it sometimes does, reels it back via an en banc proceeding. Even though it wouldn't shock me, I wouldn't predict it.