Quirky Question # 170: Unconventional Medical Care and FMLA Coverage
We have a diverse workforce. While most of our employees utilize Western-style medicine for their medical needs, that is not uniformly true. Some employees rely upon non-traditional (at least not US traditions) medical treatment.
How far does the FMLA go with respect to these types of treatments? Recently, one of our employees sought FMLA coverage for faith-healing treatments. Although the employee’s belief that faith-healing might be genuine, do we have to cover it? Please, say it ain’t so.
Good questions, but not necessarily susceptible to a simple answer. Let’s start with the basics. The federal Family and Medical Leave Act (FMLA) has certain qualifying criteria. In essence, an employee must have worked 1250 hours in the preceding 12 months and have been employed by the company for at least 12 months. If an employee meets these criteria, he or she may qualify for up to 12 weeks of unpaid leave. (There are some “quirks” that we have addressed in other Blog posts we’ve written on the FMLA, including for example, the fact that the 12 months of employment do not have to be consecutive and can, in fact, be separated by years. For a review of those articles, use the category index above.)
The FMLA encompasses medical care needed by the employee him/herself as well as medical care needed by certain family members. Leave may be taken intermittently when medically necessary.
Your questions focus on what constitutes medical care and who is authorized to provide it. The FMLA provides guidance on both of these issues. Under the statute, a “health care provider” is defined as “a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or . . . any other person determined by the Secretary to be capable of providing health care services. “ 29 U.S.C. § 2611(6). A “serious health condition” is defined in the statute as “an illness, injury, impairment, or physical or mental condition that involves . . . inpatient care in a hospital, hospice, or residential medical care facility; or . . . continuing treatment by a health care provider.” Id. at § 2611(11).
Given this statutory framework, the questions we would pose to you in response to your inquiries are: a) assuming that your employee is otherwise qualified for FMLA coverage, what is his/her “serious health condition”; b) what is the “non-traditional” medical care that your employee seeks leave for; and c) does your employee’s “non-traditional” medical care, whether based on “faith healing” as you describe, or some other belief system, preclude concurrent utilization of Western medical care or procedures? The answers to these inquiries are critical to providing sound advice to your questions, as will become evident from the description of the case below.
The recent decision of Tayag v. Lahey Clinic Hospital, Inc., No. 10-1169 (1st Cir. January 27, 2011) implicated a number of issues relevant to your inquiries. In Tayag, an employee sought seven weeks of FMLA leave from her employer (Lahey Clinic Hospital) to accompany her husband, Rhomeo Tayag, on a “spiritual healing trip.” There was no question that Rhomeo Tayag suffered from several serious health conditions, including gout, chronic liver and heart disease, rheumatoid arthritis, and kidney problems that previously had necessitated a transplant. The plaintiff, Maria Tayag, had been heavily involved in caring for her husband over a multi-year period.
On many occasions between 2003 and 2006, Lahey Clinic Hospital had granted Maria Tayag FMLA leave, often of short duration, to assist in the care of her husband. In May 2006, without claiming FMLA leave, Maria Tayag used vacation time to accompany her husband to Lourdes, France – a major site for Roman Catholic pilgrimages and “reputed miraculous healings.” Following that trip, in July 2006, Rhomeo Tayag underwent an angioplasty procedure. Maria Tayag then sought FMLA leave from her employer “to assist Rhomeo while he traveled.”
Lahey Clinic’s benefits administrator requested an FMLA certification from Rhomeo’s primary care physician. The physician provided a note stating that Rhomeo’s combined medical problems “significantly affect his functional capacity to do activities of daily living” and advised that Maria Tayag receive medical leave to accompany her husband on any trips he may be planning. Because some of the medical problems identified by the primary care physician were cardiology issues, the Company requested an additional FMLA leave form from Rhomeo’s cardiologist. Maria Tayag provided her employer that information and Lahey Clinic followed up with a second request. The cardiologist, however, completed the FMLA leave form by stating that Rhomeo was “presently . . . not incapacitated” and that Maria Tayag would not need leave. The company’s benefits administrator sent Maria Tayag letters advising her that the FMLA leave was not approved.
Unfortunately, Maria Tayag had not waited for her employer’s final determination before departing on her travels with her husband. By the time the Hospital’s letters were sent, the Tayags had left for the Philippines, where, among other activities, they explored various faith-healing efforts. During the same trip, they visited with family and friends. Significantly, during the trip Rhomeo Tayag did not receive any conventional medical treatment and saw no doctors or other health care providers. Nevertheless, Maria Tayag later described the trip as involving a series of “healing pilgrimages” with incidental socializing.
Not having heard anything from Maria Tayag in response to its correspondence, and given the fact that she was not at work for a protracted period, Lahey Clinic Hospital terminated Maria Tayag’s employment. As a result of her termination, Maria Tayag sued the Hospital for various alleged statutory violations, including supposed violations of the FMLA.
The parties cross-moved for summary judgment and the District Court granted the Hospital’s motion, dismissing all of Tayag’s claims, including her FMLA claim. The FMLA claim dismissal was appealed to the First Circuit. In reviewing the summary judgment grant de novo, the appellate court observed, “the result depends on whether a ‘healing pilgrimage’ comprises (sic) medical care within the meaning of the FMLA.”
The First Circuit pointed out that “faith healing” is addressed in the FMLA regulations only in the section identifying others capable of providing health care services, which in certain conditions, includes Christian Science practitioners. As the appellate court recognized, however, Christian Scientists do not avail themselves of ordinary medical care. Rhomeo Tayag, in contrast, had done so on many prior occasions.
The Court rejected Maria Tayag’s superficial Constitutional argument based on an alleged differentiation among religions. As the Court stated:
“She does not claim that Rhomeo’s religion forbids ordinary medical care, and she has already taken FMLA leave a number of times to assist him in connection with receiving such care. And it is hard to see how more would be required: distinguishing among religions as such may well be suspect; limiting FMLA coverage for faith healing trips to those whose faith makes no other demands for medical assistance is not self-evidently an improper discrimination.”
The First Circuit also rejected the plaintiff’s FMLA claim based on the report of her husband’s cardiologist that medical leave was not necessary at that time. The Court noted that even assuming the two medical reports were in conflict, the FMLA requires a binding third opinion, a step Maria Tayag simply ignored before departing on her travels to the Philippines. For both reasons, the appellate court affirmed the dismissal of Tayag’s FMLA lawsuit.
We are hopeful that this case illustrates the importance of the questions we referenced above. Before being able to evaluate whether the FMLA might cover your employee, any number of additional inquiries should be explored. Is your employee FMLA-eligible? What is your employee’s serious health condition and is it encompassed by the FMLA? What is the alternative, non-Western medical care sought by your employee? And, as the Tayag case illustrates effectively, is the non-Western, non-traditional medical care your employee seeks being pursued to the exclusion of more traditional medical care? In other words, is your employee’s approach more akin to that of the Christian Scientist, or is the “faith healing” experience for which your employee is seeking leave merely a supplement to traditional types of medical care. If the latter, he/she will have a far more difficult time advancing a compelling justification for entitlement to FMLA leave. Once you assess these inquiries, you will be better positioned to evaluate whether your employee has a legitimate claim to FMLA leave.
In general, as the U.S. workforce continues to become increasingly diverse, we have little doubt that these types of questions will arise more frequently in the future in a variety of different factual contexts and grounded upon different belief systems. But the statutory framework of the FMLA and the judicial interpretations regarding the scope and reach of the statute should provide you and others a firm basis on which to evaluate your employees’ requests for FMLA leave when those requests are dependent upon non-traditional medical care.