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Can I Use FMLA Leave To Visit A Sick Family Member? Best Lawyer Reply!

On Behalf of | Jun 17, 2015 | Family Medical Leave Claims, Wrongful Termination |

Top Ohio FMLA Attorney Answer: Can I take FMLA to visit a family member who is in the hospital? What does it mean to “care for” a sick family member? Do I have to “care for” my sick family member every day that I am on FMLA leave?

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The Family Medical Leave Act (“FMLA”) is a federal law that requires covered employers to provide up to twelve weeks of unpaid leave to an eligible employee to take care of their own serious health condition, or for the serious health condition of a family member. However, before employees request to take FMLA for their family members, they may want to make sure they actually need leave to “care for” their sick family member.

In Fioto v. Manhattan Woods Golf Enterprises, LLC, the United States Southern District Court of New York recently held that for an employee to be qualified for FMLA leave to take care of a sick family member, the employee must actually take care of the family member – just being with the family member, or visiting them, is not enough:

As the language of the statute and the regulation make clear, FMLA does not provide qualified leave to cover every family emergency. FMLA leave is only available when an employee is needed “to care for” a family member. FMLA does not cover absences that do not implicate giving physical or psychological care for a relative. And while the statute has been broadly construed—for example, one court has found that assisting in making medical decisions constituted giving “care” to a relative for FMLA purposes, Brunelle v. Cytec Plastics, 225 F.Supp.2d 67 (D.Me.2002)—merely visiting a sick relative does not fall within the statute’s parameters. The employee must be involved in providing some sort of on-going care for his relative in order to qualify for FMLA leave. As Magistrate Judge Lefkow stated in Cianci v. Pettibone Corp., 1997 WL 182279 (N.D.Ill. Apr. 8, 1997), a case in which the plaintiff claimed that FMLA had been violated when she was denied an extended leave to visit her ailing mother in Italy, “However sympathetic plaintiffs request to visit her ailing mother may have been and however unfair or uncaring the company’s response, the evidence before this court indicates that it is not the type of leave to which she is statutorily entitled.”

To get a free initial consultation regarding your FMLA rights and possible wrongful termination claims, you should call attorney Brian Spitz and the employee’s lawyers at Spitz, The Employee’s Law Firm today to set up a free initial consultation.

In Fioto, the employee actually won at trial – the jury awarded Fioto $126,825.00 for the employer’s violation of FMLA and wrongful termination, and $74,375.00 for the employer’s breach of contract. However, the employer filed a motion for judgment as a matter of law on the FMLA verdict, arguing that the employee had failed to produce any evidence that Fioto was legally eligible for FMLA in the first place.

The employee argued that he had taken FMLA leave to be at his mother’s side when she required emergency brain surgery. According to the employee, he was needed at the hospital to provide “psychological care” for his mother – that his being there provided his mother with comfort during the serious procedure she endured.

While sympathetic to the employee in this situation, the court explained that the his lack of evidence regarding his interaction with his mother and her doctors before or during the surgery, along with the employee’s testimony that he did not see his mother after her surgery, precluded any conclusion that he had cared for his mother:

Unfortunately for Fioto, the record is completely devoid of any evidence that Fioto was needed to provide either physical or psychological care for his mother, even under [an] extremely generous reading of FMLA.

Insofar as psychological care is concerned, the jury knew only that plaintiff went to the hospital and did not see his mother after her surgery. It was not told whether he saw his mother prior to surgery, or whether his mother was conscious or unconscious when plaintiff arrived at the hospital. The jury did not even know whether plaintiffs mother was aware that he was on the way to the hospital, or was capable of being aware of his imminent arrival. It is entirely possible that his mother was aware of her son’s presence at the hospital and felt succored and reassured by it. It is equally possible that she never even knew he was there. Indeed, it is possible that defendant’s mother was unconscious for some period prior to her surgery—counsel’s assertion in his memorandum of law that Mr. Fioto’s mother fell into a coma after her surgery has no evidentiary support. Because the language of the statute does not guarantee employees FMLA leave to visit an ailing parent, it was incumbent on plaintiff to demonstrate that he was doing something—anything— to participate in his mother’s care.

Neither is there any evidence that plaintiff provided physical care…[a]lthough one might well speculate that plaintiffs presence at the hospital was desirable for that purpose, there is no evidence that plaintiffs presence was needed to make medical decisions for his mother—for that matter, there was no evidence that he was the person with legal authority to make such decisions for her— or that he in fact did so.

In short, while it is entirely possible that plaintiff did some or all of the kinds of things that qualify as taking care of his mother, it is equally possible that he did none of them. In order to return a verdict in his favor, the jury necessarily engaged in speculation.

As a result, the court granted the Defendant’s motion, and the jury’s verdict was overturned.

The takeaway from this case is fairly simple – if you take FMLA leave to care for a family member, make sure you actually care for them. While you can argue – as Fioto tried to – that you “were there for” your family member, it helps if there is some evidence the family member was aware of that fact.

If you feel that you are being denied leave rights under the Family Medical Leave Act (FMLA) or are being retaliated against for taking medical leave, you should call the right attorney as quickly as possible to schedule a free and confidential consultation. The phone number to contact an Ohio attorney for FMLA help is 866-797-6040. While you focus on your family medical needs, let our FLMA attorneys focus on your medical leave rights.


This employment law website is an advertisement. The materials available at the top of this medical leave page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “how do I get medical leave under the FMLA?”, “what should I do when my job won’t give me medical leave?”, “can my boss deny me medical leave?”, “what should I do if I was fired in retaliation for taking FMLA leave?”, or “is my employer allowed to…?”, your best option is to contact an Ohio medical leave attorney to obtain advice with respect to FMLA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.

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