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Can I Do Other Things Besides Provide Care While On FMLA?

by | Jul 25, 2022 | Age Discrimination, Coronavirus, Employment Law, Family Medical Leave Claims, Retaliation |


The Family and Medical Leave Act (“FMLA”) is a federal law that provides an employee a job protected right to take up to 12 weeks off from work to either personal deal with a serious medical condition and/or treatment, or to care for a family member with a serious medical condition. Specifically, 29 §2612(a)(1)(C) states that an employee is entitled to leave “[i]n order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.” (Best Law Read: How Do I Use FMLA To Care For My Child?). The FMLA prevents an employer from blocking an employee from using FMLA leave. (Best Law Read: What Is An FMLA Interference Claim?). The FMLA further protects an employee from retaliation or wrongful termination as a result of using medical leave. (Best Law Read: FMLA Retaliation Tips – Call The Right Attorney; Firing Employee On FMLA Following Miscarriage Is Evil). However, the FMLA does allow employers to fire employees who abuse FMLA leave. (Best Law Read: Can Employees Go On Vacation While On FMLA?; Top Medical Leave Lawyer Reply: Can I Attend Family Events Or Vacations While On FMLA?). To that end, many employers and employees end up fighting about what employees were actually doing while on leave … which brings us to today’s blog topic?

What activities fall under care for a family member in order to be protected by the FMLA?

Best FMLA Lawyer Answer: Today our employee’s right attorneys look at Lands v. City of Raleigh, No. 5:21-CV-491-BO, 2022 WL 2182167, at *1 (N.C.E.D. 2022), in determining what counts as caring for a family member with a serious health condition under FMLA. The answer may surprise you!

In Lands, Patrick D. Lands, a police officer for the Raleigh Police Department, took leave pursuant to the FMLA beginning on September 13, 2017, to care for his father. The City of Raleigh then approved Lands for an additional 11 months of paid sick leave, and Lands returned to work on December 7, 2018. As part of caring for his sick father, Lands also assisted with his father’s business, Total Construction, in addition to providing his father with medical care. During this time, Lands did not accept any wages from Total Construction, was not an employee of Total Construction, and instead just kept the business afloat while his father was recovering.

When Lands approved leave of absence ended, he returned to work for the City of Raleigh with no issue. It was not until July 3, 2019, over six months after Lands returned to work, that Raleigh Police Department Captain C.T. Barnett received a complaint about Lands from a disgruntled customer of Total Construction. When Captain Barnett interviewed the individual, Cathy Hunt, who submitted the complaint about Lands, Captain Barnett learned that the complaint was relating to home repairs completed by Lands and/or Total Construction during Lands FMLA leave.

After learning the Lands had been assisting with his father’s business while on FMLA leave, the City of Raleigh made a formal complaint against Lands alleging that Lands violated three city policies, including taking on secondary employment. Lands was soon placed on leave from July 3, 2019, until December 29, 2019, while an investigation was done into Lands activities while on FMLA leave.

Ultimately, Lands’ employment with the City of Raleigh was terminated on November 25, 2019. Lands filed a complaint with the United State District Court, Eastern Division of North Carolina, on November 29, 2021, alleging that his termination was in retaliation for taking FMLA leave. The City subsequently filed a motion to dismiss the case. To support their Motion to Dismiss, the City of Raleigh argued that Lands was not providing care to his father when he was working his father’s business as defined by §2511(11) of the FMLA. The FMLA defines many words, but it does not define what it means by “care.” In their Motion to Dismiss, the City of Raleigh argued that “care” includes only providing direct medical care to a family member.

In response, Lands argued that caring for his father included both direct medical care and, also caring for his father’s business during his incapacitation. Ultimately, the District Court sided with Lands and on June 16, 2022, denied the City of Raleigh’s Motion to Dismiss, holding that he was allowed to help his father’s business:

Plaintiff states that he was providing necessary medical care to his father contemplated by § 2612(a)(1)(C), and thus he was engaged in a protected activity when he took FMLA leave. Defendant argues that plaintiff was not entitled to FMLA leave and thus not engaged in a protected activity. Defendant argues that plaintiff was not entitled to FMLA leave because plaintiff was allegedly not providing care to his father as defined by § 2611(11). Defendant does not appear to dispute that plaintiff’s father suffered from a serious medical condition. Defendant alleges that defendant was impermissibly doing other activities potentially in addition to providing care. Surely it cannot be true that a person taking FMLA leave is prohibited from doing any activity besides providing direct care. This would preclude grocery shopping for themselves, taking their children to school, and all manner of things. Plaintiff states that he was providing care and has stated facts that lead to the plausible inference that plaintiff was providing care. Accordingly, the Court finds that plaintiff was engaged in a protected activity when he took FMLA leave. See Yashenko, 446 F.3d at 551.

Land at *3 (Emphasis added). This is one of those situations were a court properly applied common sense. Even under the most serious health conditions, no one can or should spend 24/7 care to an ill relative. Moreover, what care or assistance each family member needs will vary from case to case. This ruling may open a plethora of ways that a family member can care for their loved ones.

Can my employer get around FMLA laws by lying about the reason they fire me?

Best Wrongful Termination Attorney Answer: Many, if not most, employers will try, which is why it is important to have the best employment law attorneys to help. After an employee makes an initial case of FMLA retaliation by showing that he/she/they used FMLA leave, that the employer took adverse action against the employee, and that the adverse action was causally connected to the plaintiffs protected activity; the employer must provide the court with a legitimate reason unrelated to the use of a protected right. (Best Law Read: What Constitutes An Adverse Employment Action Under Title VII?; What Is An Adverse Employment Action?).

At that point, the employee has the opportunity to demonstrate that the employer’s stated is false or did not actually motivate its decision. (Best Law Read: Employment Discrimination Question: What Is Pretext? ).

The District Court in Lands explained this process:

“If the employer meets this burden, the presumption of retaliation is dissolved and the plaintiff resumes the burden of persuading the factfinder that the employer’s proffered explanation is merely a pretext for discrimination.” Sharif, 841 F.3d at 203. The plaintiff may satisfy this burden by producing “sufficient evidence to create a genuine dispute of material fact such that a reasonable factfinder could conclude the adverse employment action was taken for an impermissible reason, i.e., retaliation.” Id.

Lands at *3. The City of Raleigh relied exclusively on the argument that the employee violated City policy by working at his father’s business at Total Construction. Once again, the District Court held that this argument fell short:

Defendant offers no specific facts to support plaintiff’s termination other than his alleged secondary employment with Total Construction. Defendant does not allege that defendant was unhappy with plaintiff’s job performance. To the contrary, defendant was promoted to the rank of Detective during the course of his employment. Defendant lists Conduct Unbecoming as a policy that plaintiff allegedly violated but provides no facts as to what conduct violated this policy. Defendant offers allegations that plaintiff misused FMLA and Sick leave, but provides no allegations that defendant was terminated for unsatisfactory job performance. Plaintiff offers facts to rebut defendant’s allegation that plaintiff was engaged in secondary employment. Plaintiff states that he was not compensated for assisting his father with his business, was not an employee of his father’s business, and only helped his father with his business when he was not providing direct and actual care to his father. It appears that defendant only became dissatisfied with plaintiff when a disgruntled citizen complained about Total Construction. Accordingly, plaintiff has met “the burden of establishing that the employer’s proffered explanation is pretext for FMLA retaliation.” Vannoy, 827 F.3d 296, 305 (4th Cir. 2016) (quoting Yashenko, 446 F.3d at 551.). Accordingly, plaintiff has plausibly stated a claim that the reason for plaintiff’s termination was pretextual and in fact retaliatory.

Land at *4.

And with that, the District Court denied the City of Raleigh’s Motion to dismiss.

What should I do if my job fires me in retaliation for taking FMLA to care for a family member?

Best Medical Leave Lawyer Answer: Everyone knows that the impact of serious health conditions impacts many aspects of one’s life. It is not limited to impacting the body alone. So, if your care of a loved one doesn’t just include direct medical care, don’t fret, you still have FMLA rights!

The best thing you can do if you believe you have been terminated for taking leave under the Family Medical Leave Act (FMLA), is to call the right attorney as quickly as possible to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?). As is clear above, laws can be interpreted in many ways and not every way is the right one. Don’t just listen to your employer’s definition of your rights; speak with one of our experienced FMLA attorneys to see if your rights have been violated. Our lawyers are here to get you the FMLA that you are entitled to or to fight to get you paid for violations of your employee rights.

Disclaimer:

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 to care for a sick parent under the FMLA?”, “what should I do when the company that I work for refuses to allow me to take time off to care for my sick son?”, “can my boss deny me medical leave?”, “what can I do I lost my job in retaliation for taking FMLA leave?”, or “is my manager allowed to deny my ability to use FMLA leave?”, 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 The Spitz Law Firm, LLC, Brian Spitz, or any individual attorney.