• Cleaning Mom's Flooded Basement Is Not "Caring for" Mom under FMLA
  • July 23, 2010 | Author: Michael J. Soltis
  • Law Firm: Jackson Lewis LLP - Stamford Office
  • Cleaning mom’s flooded basement is not “caring for” mom under the FMLA, according to a Michigan federal district court. Because the three days of flood cleaning were not excused by the FMLA, the employer did not violate the FMLA by terminating plaintiff’s employment under its  absence policy, according to the court.

    In Lane v. Pontiac Osteopathic Hospital, the plaintiff, who lived with his mother, had submitted an FMLA certification stating that his mother had diabetes, high blood pressure, weight loss and arthritis, and that he would need intermittent leave to provide her food and transport her to doctors’ appointments.  The company approved his leave request.

    During the period covered by the certification, the company discharged the plaintiff under its absence policy. The plaintiff claimed the three flood cleaning days should be excused because his mother had hepatitis and the stagnant water was a “breeding ground” for the disease.

    The court rejected the plaintiff’s argument, noting that flood cleaning was not encompassed by his FMLA paperwork, that he had not established that the basement had to be “immediately cleaned for her basic medical, hygienic or safety needs and that he had to do it because she could not,” and that he did not establish that his mother’s hepatitis was in danger of being aggravated if he did not clean the basement immediately.     

    This decision indicates that the definition of “caring for” under the FMLA is not unlimited, though many courts have interpreted the phrase so broadly that employers often do not even explore the “caring” activities, let alone challenge them. Of particular interest is that the court seems to suggest that the potential harm to the family member if the care is not provided immediately, and whether the family member can do the “caring” activity his/her self are factors to consider in evaluating whether a particular “caring” is protected by the FMLA.