The FMLA and Psychological Support: Courts Care About Care (and Employers Should, Too)

The Family and Medical Leave Act (“FMLA”) recognizes an employee’s right to take leave to care for a qualifying family member. In light of the Act’s remedial nature, the intended scope of the care provision is broad, but its definitional details are sparse. As a result of the attendant interpretive discretion afforded to courts, the Seventh Circuit announced its rejection of the requirement—first articulated by the Ninth Circuit—that care provided during travel be related to continuing medical treatment. A facial analysis of the resulting circuit split fails to appreciate the fundamental difference between the Seventh and Ninth Circuits’ considerations: the distinction between physical and psychological care. Whereas physical care is readily measurable, psychological care is less defined and, consequently, ripe to facilitate FMLA abuse. Efforts to combat this potential lead courts to impose judicially devised limitations on psychological care, but judicial discretion still infuses some uncertainty into proceedings. For employers, the best remedy lies in the FMLA’s optional certification provision, which requires medical validation of an employee’s need for leave. In requiring certification, employers should distinguish between physical and psychological care, maximize the FMLA’s informational requirements, and implement complete and consistent request and approval procedures