Vigilant Blog

News, trends and analysis in employment law, HR, safety & workers' comp

Feb 17, 2010

FMLA may protect leave to travel to a foreign country


Question: An employee requested leave to take her ill husband to Mexico for treatment and to visit family. Do I have to grant the leave? We know the husband has a serious health condition under the federal Family and Medical Leave Act (FMLA).

Answer: Maybe. You need to determine two things: is the husband going to receive treatment from a covered health care provider and what is the real purpose of her leavecaring for him (including psychological care) during treatment, or helping him visit family?

The FMLA recognizes treatment by a foreign health care provider if he or she is authorized to practice under the laws of the foreign country and the provider is performing within the scope of his or her practice. As a practical matter, it may be very difficult, if not impossible, to determine if that it is the case. If the employees spouse also has a local health care provider, you may ask for certification from that provider regarding the employees need to care for the spouse. Alternatively, you could ask the employee to have the medical certification form completed by the foreign health care provider, knowing that the information may not be verifiable.

Next, you need to determine the purpose of the leave. Recently a federal district court ruled that an employees seven-week trip to the Philippines that included taking her ill husband to visit family and attend a Pilgrimage of Healing Ministry at a Catholic church did not qualify as treatment under the FMLA and that the real purpose of her leave was to help her husband visit family (Tayag v. Lahey Clinic Hospital, Inc., D Mass, Jan. 2010). Are you puzzling over an FMLA issue? Call Vigilantwere here to help!

This website presents general information in nontechnical language. This information is not legal advice. Before applying this information to a specific management decision, consult legal counsel.