Recently, various outlets have been discussing the plight of Indianapolis Colts’ running back, Trent Richardson (hang in there, we will be getting into the legal question in one second). Namely are the Colts going to try to void the contract of Richardson in order to save money? What caught my eye about the situation is that it was allegedly precipitated because Richardson missed a “walkthrough” (if any football minded readers could enlighten me as to what this is I would appreciate it) due to “serious complications with his girlfriend’s pregnancy that could potentially have endangered the life of [his] child.” Shortly after this, Richardson was suspended for two games which got me thinking whether he might not have an argument for Family Medical Leave Act (FMLA) retaliation. Hit the jump for my thoughts…The first thing to be very clear about is that Richardson could not take FMLA leave just to care for the serious health condition of his girlfriend. The FMLA applies only to “spouses” defined as individuals married according to the laws of the state they live in. Unfortunately, in addition to preventing leave for unmarried couples, this also serves to block leave for same-sex couples living in states that do not recognize same-sex marriage (though that may change now that the Supreme Court will be reviewing laws that prevent same-sex marriages and in light of a recent proposed definition change by the Department of Labor). From a quick bit of Googling it looks like at least one Human Resources site thinks this is the beginning and end of the question but I am not so sure (and to be fair that post was from 8 years ago and FMLA interpretation is always evolving).
The interesting factor for me is that the FMLA explicitly covers leave to care for the serious health condition of your “son or daughter.” There are some complicated issues at play here but I think an argument can be made that a situation like Richardson’s may be covered as leave to care for a son or daughter. The first issue is whether this is a serious health condition of the child or of the mother. I can see that many complications may be deeply unpleasant for the mother but not have greater ramifications for the unborn child, for example an order to remain on bed rest. However, courts considering the FMLA have tended to take a very expansive and lenient view of the definitions in the Act. If the complication is as severe as Richardson made it out to be, where decisions may need to be made about treatments that could harm or even terminate the fetus, I could see a sympathetic judge finding that to be a serious health condition of the child.
One might object that such decision-making is not “caring for a serious health condition” in the traditional sense but courts have been expanding the definition of caring to cover a wide variety of health-adjacent activities (such as trips to Vegas). Additionally, I think an easy analogue exists for people making treatment decisions for incapacitated spouses or parents. So even though no direct care is being provided to the child, the participation in healthcare decisions would count.
Third, an objection my position can be raised as to whether an unborn fetus would even qualify as a “son or daughter” for FMLA purposes. This is an issue that is not addressed in the statute or it’s regulations (and I couldn’t find any direct case law after an, admittedly quick, search). There will always be a wide variety of approaches when a court is forced to determine the legal existence of a child so this may be the factor that is hardest to predict but, again relying on the charitable interpretations of the courts, there is at least an argument to be made
Taking these considerations together, I could see a court finding that the FMLA applied to serious or life-threatening conditions of an individual’s unborn child being carried by their unwed partner. Obviously this is a very limited class of individuals but Richardson may be just the one needed to clarify this matter in a court. Some articles report that he could stand to lose $3 million, in addition to any money he may have lost due to the suspension, so an enterprising FMLA attorney looking to make a potential windfall may just be willing to take a risk.
If you are a Missouri NEA member dealing with your own serious health conditions or those of a spouse, child, or parent, contact your UniServ Director immediately for assistance.