In an unpublished decision released last fall, the United States Court of Appeals for the Ninth Circuit affirmed a district court decision granting summary judgment against an employee's claims under the Hawaii Family Leave Law (HFLL) and the Family Medical Leave Act (FMLA).  With respect to the HFLL claim, the court affirmed that the employee could only premise a leave request under Hawaii law on her father-in-law's serious health condition. Once her father-in-law passed away, she was rendered ineligible for HFLL leave, even if she was personally suffering from a medical condition resulting from a back injury.

With respect to the FMLA claim, the employee claimed that she was entitled to FMLA leave related to a back injury she sought treatment for while in Hong Kong.  In affirming the district court decision that the employee was ineligible for FMLA, the Ninth Circuit reasoned that she did not suffer a serious health condition within the meaning of the law.  A serious health condition is an "illness, injury, impairment or physical or mental condition that involves ? continuing treatment by a health care provider ? " 29 U.S.C. 2611(11).  The employee was considered ineligible for FMLA because her treatment, which consisted of the application of an ointment and a back massage" by a licensed bone specialist who also practiced Chinese medicine, did not suggest that the treating provider was a "health care provider" under applicable law.  FMLA regulations define a "health care provider" as including providers outside of the United States who are "authorized to practice in accordance with the law of that country, and who [are] performing within the scope of [their] practice as defined under such law".  29 C.F.R. 825.125(b)(5).  The limited evidence provided by the plaintiff failed to create a genuine issue of material fact regarding whether a health care provider provided the treatment she sought, and the dismissal of her FMLA claim was therefore affirmed.  Tsun v. WDI Int'l Inc.