Chapter § 1-25 29 CFR § 825.124. Needed to Care for a Family Member or Covered Service Member

• Jurisdiction: United States

1-25 29 CFR § 825.124. Needed to Care for a Family Member or Covered Service Member

(a) The medical certification provision that an employee is "needed to care for" a family member or covered service member encompasses both physical and psychological care. It includes situations where, for example, because of a serious health condition, the family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor. The term also includes providing psychological comfort and reassurance which would be beneficial to a child, spouse or parent with a serious health condition who is receiving inpatient or home care.

(b) The term also includes situations where the employee may be needed to substitute for others who normally care for the family member or covered service member, or to make arrangements for changes in care, such as transfer to a nursing home. The employee need not be the only individual or family member available to care for the family member or covered service member.

(c) An employee's intermittent leave or a reduced leave schedule necessary to care for a family member or covered service member includes not only a situation where the condition of the family member or covered service member itself is intermittent, but also where the employee is only needed intermittently—such as where other care is normally available, or care responsibilities are shared with another member of the family or a third party. See §§ 825.202 through 825.205 for rules governing the use of intermittent or reduced schedule leave.

1-25:1 Commentary

1-25:1.1 "To Care For" Leave

The FMLA provides that leave is available not only for their own serious health conditions but for those of children and parents as well. Employees may take leave "to care for" children and parents, and care encompasses the provision of both physical and emotional support. This portion of the regulations will become increasingly important as "baby boomers" start to joggle care for both their aging parents as well as their children. There will, therefore, be more litigation on exactly what "to care for" means. Courts thus far, including Texas, are imposing a restrictive definition.

• Bagley v. Regis Corp., No. 3:03-CV-2908-M, 2004 U.S. Dist. LEXIS 24783 (N.D. Tex. Dec. 7, 2004) (court acknowledges that care encompasses both physical and emotional support; yet court grants summary judgment against employee who missed mandatory meeting at work to care for eighteen-year-old daughter undergoing knee surgery; court reasons that plaintiff provided no evidence that child was incapable of "self-care" in basic day-to-day functioning, such as dressing, eating, and bathing and rejects argument that need for daughter to use crutches automatically means that she is incapable of self-care and that inability to engage in after school activities falls within self-care; without such a showing, plaintiff could not establish the need for FMLA leave to statuto-rily "care" for her daughter, and thus absence from work-related meeting was unprotected and was legitimate ground for termination).
• Romans v. Michigan Dep't of Human Servs., 668 F.3d 826 (6th Cir. 2012) (summary judgment reversed; court holds that "make arrangements" in subsection (b) is not limited to those instances where the employee is "subbing in" for a family member and holding that a decision on whether to continue mother on life support is encompassed by "arrangements for changes in care.").
• Brannan v. Unified Sch. Dist. 211, No. 11-1128-EFM-KGG, 2013 WL 120163 (D. Kan. Jan. 8, 2013) (granting summary judgment to defendant where plaintiff was absent in order to be with daughter during pregnancy and after birth; court finds that daughter had experienced a normal birth and was discharged from the hospital with no restrictions, and, upon arriving home, daughter was able to dress herself, cook, clean, and drive to the grocery store; moreover, court notes that plaintiff took care of her daughter's two other children to relieve the burden upon her, but the FMLA does not entitle an employee to take FMLA leave for grandchildren; "while the court understands and acknowledges that plaintiff's daughter welcomed any help that she received after the birth of

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