Psychological Care Under FMLA: How Can an Employee
Qualify?
By: DENA B. CALO, ESQ., AND JULIA A. O’HALLORAN, ESQ.
Published: February 4, 2014
Knowing how to address the needs of employees with caregiving responsibilities can be
complicated. It becomes even more challenging when an employee's parent or child becomes so
seriously ill that the employee requests a leave of absence to provide care that is not physical, but
psychological. Attorneys Dena B. Calo and Julia A. O'Halloran offer some insights into how an
employer can handle such a situation based on a hypothetical scenario and actual court outcomes.
Dear Employment Law Specialists,
Several months ago, we approved FMLA leave for an employee to care for her father who was
undergoing cancer treatment. We recently found out, through investigation, that our employee did
not ever actually visit her father. Rather, she now claims that she spoke with him consistently over
the phone throughout her leave, and that she consulted with her father’s doctors about his treatment.
Is it possible that her leave could still be protected under the Family and Medical Leave Act, even
though she never saw her father? – R.S., HR Director
Dear R.S.,
Unfortunately, you are dealing with a tricky area of FMLA as the law allows covered employees to
take protected leave to care for a family member with a serious health condition. Under the
regulations, this care can include both physical care and psychological “comfort and reassurance
that would be helpful to a child, spouse or parent with a serious health condition who is receiving
inpatient or home care.” This loose definition of psychological care has led courts to a range of
conclusions concerning what an employee must do in order to qualify for FMLA protection.
