Tuesday, February 21, 2012

Putting the “human” back in human resources (or, how the FMLA covers life-support decisions)


On April 4, 2006, Jerry Romans Plaintiff received a call at work from his sister, who told him that his terminally ill mother was unlikely to survive the night, and decisions needed to be made about whether to keep her on life support. Prior, Romans had submitted paperwork to his employer certifying that he was a health care provider and power of attorney for his mother. He intended to go to the hospital immediately after his shift, which was scheduled to end at 11 p.m. His employer, however, told him to work a double shift to cover for an employee on the next shift who had called off. Romans told his supervisor, “I’m not staying. My mom’s dying. I’m leaving,” but the supervisor responded, “I’ll have you fired if you leave.” Romans nevertheless punched out, left the facility, and drove to the hospital.

In his subsequent lawsuit, Romans challenged that the one-day suspension he received for “leaving the facility and abandoning his shift” violated the FMLA. In Romans v. Michigan Dep’t of Human Servs. (2/16/12) [pdf], the 6th Circuit agreed. The court pointed out that the FMLA’s regulations provide that an employee who is “needed to care for” a family member is entitled to FMLA leave. That “care” can be either psychological comfort or physical care, and includes arrangements for changes in care. The 6th Circuit concluded that “a decision regarding whether an ill mother should stay on life support would logically be encompassed by ‘arrangements for changes in care.’” Applying a common sense (and, dare I say, human) interpretation of the FMLA, the court added, “To be sure, this is the kind of decision, like transfer to a nursing home, that few people would relish making without the help of other family members, and the regulations do not force them to do so.”

To often, we, as lawyers, business owners, HR professionals, and the like, become too caught up in what the law allows us to do or forbids us from doing. When you focus too much on the legalities of a personnel decision, you risk losing focus on the humanities of the situation. This case illustrates 1) that the law, every now and again, lets employers make humane personnel decisions, and 2) bad things happen when businesses ignore the golden rule of employment relations.

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