FMLA Leave: Vegas here I come!

int248FIn Ballard v. Chicago Park District, No. 13-1445 (7th Cir., January 28, 2014) the Seventh Circuit Court of Appeals considered whether the FMLA (Family Medical Leave Act) applies to protect an employee’s trip to Las Vegas with her ill mother.   The employee was an employee for the City of Chicago and resided with her mother who was receiving hospice and palliative care due to end stage congestive heart failure.  The employee’s  care of her mother included cooking meals, administering insulin and other medications, draining fluid from her heart, bathing and dressing her, and helping her go to bed.  The physical and psychological care for her mother during the trip required her to be on the trip the employee claimed.  The employee’s mother was terminally ill and she expressed to her hospice care provider that visiting Las Vegas was an end of life goal.  The employee submitted an FMLA leave request with her employer who denied the request.  The employee proceeded to accompany her mother on the trip and subsequently claimed she was not aware of the employer’s denial.  There was also an issue as to whether there was sufficient advance notice.  The employee had in fact served as her mother’s caregiver and had taken her to the hospital when an issue with her medication actually arose.  The employer terminated the employee for absence without authorization.

The employee proceeded to file a cause of action in federal court citing the Family Medical Leave Act proclaiming that the trip and provision of care to her mother was appropriate and that the location of such care was irrelevant.   The FMLA specifically provides unpaid leave for tasks such as providing transportation for the family member to attend medical treatment, providing psychological support and comfort or providing for the family member’s medical, hygienic or nutritional needs.  The FMLA permits a “qualified” employee to take up to 12 weeks of unpaid leave for medical reasons, in order to care for a sick family member, or in the case of pregnancy  or adoption. Qualified employees are those who work at companies with 50 or more employees and have worked more than 1,250 hours within the preceding 12 months.

The employer filed a motion for summary judgment arguing that the provision of care by the employee was not medically necessary or related as such occurred in the employee’s hometown.  The district court denied the motion and held that such care was authorized under FMLA if such medical care was in fact provided and furthermore that the “location” was not relevant.

The Seventh Circuit Court of Appeals upheld the denial of the motion for summary judgment.  The court did not accept the employer’s argument that the employee had to have participated in ongoing medical treatment of her mother while in Las Vegas.  Specifically, the court noted that FMLA states a family member must only “care” for a family member and not having to provide “treatment” to qualify for such leave.  The distinction of the location for such care was clarified that in fact it did not matter where the “care” was provided.  The employee was not expected to be participating in ongoing medical treatment to her mother while away from home and not so when she was home.  The  mother’s medical, hygienic and nutritional needs did not change while she was on the trip and it was held that the employee’s assistance was in fact necessary.  The scope of the physical care provided by the employee met the criteria of FMLA.     The Court underscored its findings by looking at the definition of “care” in the Department of Labor Regulations: the Regulations defined care as both “physical and psychological”

The Seventh Circuit noted that its holding parted ways  decisions in the Ninth and First Circuit Courts of Appeals in which employee trips relating to ill family members were determined to not be covered by the FMLA.  Tellis v. Alaska Airlines, Inc., 414 F.3d 1045 (9th Cir. 2005) (emphasizing that caring for a family member under the FMLA involves some level of participation in on-going treatment); Tayag v. Lahey Clinic Hospital., Inc., 632 F.3d 788, 791 & n.2 (1st Cir 2011) (denying FMLA coverage for a healing pilgrimage to the Philippines and noting that the employee “properly does not claim that caring for her husband would itself be protected leave” if they traveled “for reasons unrelated to medical treatment of [her husband’s] illnesses”).  The Seventh Circuit surmised the holdings  in those cases did not apply the FMLA statute textually or facially or its regulations which do not require ongoing treatment or place any geographic limitation on the care.he

Employees are subject to a medical certification process utilized by employers for approval of leave requests.  This holding may generate anxiety on the part of employers that employees will now claim such care as being necessary for family vacations.  The employer can properly screen such false leave requests by applying such a medical certification policy.  Employees would be well advised to have proper documentation such as medical records and a detailed journal of the physical and psychological care rendered to family members to justify such “care” rendered to a family member with a “serious medical condition.”

About Roland

Roland was born in Nashville, Tennessee and raised in Mt. Juliet, Tennessee. The first few years he resided in Paris, France with his mother who was French. In Hendersonville, he attended Beech Senior High School where played soccer and studied in the honors curriculum. Subsequently, he pursued two majors in political science and economics while graduating in three years.

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