The Family and Medical Leave Act: Is Your Child's Mental Health Condition Covered?

Issue:

Whether the child's mental health condition is considered a "serious health condition" under the Family and Medical Leave Act of 1993, 29 U.S.C.S. §§ 2601-2652.

Conclusion:

The child did not have a "serious health condition" under the Family and Medical Leave Act pursuant to 29 C.F.R. § 825.114.

Facts:

The plaintiff Vivian Martyszenko was employed by Safeway Grocery store in Ogalla, Nebraska. While at work, the plaintiff received a call from the police department who indicated that they had reason to believe that Ms. Martyszenko's two children had been the victims of sexual molestation. Upon hearing this, the plaintiff's supervisor allowed the plaintiff two weeks vacation leave to provide care for her children.

Dr. Sullivan examined the plaintiff's child, Kyle several times and indicated that the child showed no signs of sexual abuse. Family indicated that behavior at home was normal and Kyle exhibited no behavioral issues at school during the last school year.

The plaintiff returned to Safeway to discuss Kyle's remaining doctors appointments. Her supervisor offered to make her schedule around the appointments so there would be no conflict. The plaintiff left work after the discussion and did not return to work on any of her scheduled days. Safeway also offered Ms. Martyszenko her job back with full benefits and no loss of her seniority.

In Kyle's final examination by Dr. Sullivan, the child gave no "clear evidence for sexual abuse" and that it would be difficult to diagnose him with any mental illness due to the abuse, since there is no clear indication that he had initially been abused.

The plaintiff contends that "incapacity" is not required to activate the Family and Medical Leave Act. She also contends that her child's three sessions with Dr. Sullivan would qualify as the necessary period of "incapacity."

Legal Reason/ Rational:

Due to the FMLA's vagueness as to what a "serious health condition" is, and what type of medical attention comprises "continuing treatment" by a health care provider the decision was given to the Secretary of Labor to make known and make effective the act. 29 U.S.C. § 2654.

The FMLA was intended to allow a parent to care for his or her child where the child is "unable to participate in school or in his or her regular daily activities." S. Rep. No. 103-3, at 28 (1993), the FMLA's intentions were not to "cover short-term conditions for which treatment and recovery are very brief." S. Rep. No. 103-3, at 28. The court must follow the Secretary's approach to the act as long as it "is based on a permissible construction of the statute." Auer v. Robbins, 137 L. Ed. 2d 79, 117 S. Ct. 905, 909 (1997).

Consistently, in court decisions based on the FMLA, it is expressed or implied that there be a requirement of incapacity. Hodgens v. General Dynamics Corp., 963 F. Supp. 102, 1997 WL 236677, at *4 (D.R.I. 1997); Boyce v. New York Mission Soc'y, 963 F. Supp. 290, 1997 WL 232511, at 89 (S.D.N.Y. 1997); Kaylor v. Fannin Reg'l Hosp., 946 F. Supp. 988, 997-98 (N.D.Ga. 1996)."Continued" treatment is required in order to be extended leave under FMLA. 29 U.S.C. § 2611(11)(B). This is consistent with the statute allowing sensible time off "for eligible medical reasons...and for compelling family reasons," 29. U.S.C. §2601(b)(4) examinations and consultations regarding serious health conditions will only involve the FMLA as long as the condition requires absence from work.