FMLA leave or an employee's family vacation? Sometimes it is tough for an employer to tell.
The FMLA specifically permits employees to use FMLA leave to “care for” an immediate family member with a serious health condition. In most instances, the circumstances giving rise to the need for FMLA leave are straight-forward, involving 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. In other instances, however, the employee’s request to use FMLA to care for a family member appears suspect because it involves what would otherwise seem to be a family vacation.
In Ballard v. Chicago Park District, No. 13-1445 (7th Cir., January 28, 2014) the Seventh Circuit Court of Appeals considered whether the FMLA applies to protect an employee’s trip to Las Vegas with her ill mother where the employee claims she was needed to provide physical and psychological care for her mother during the trip.
In Ballard, the employee was the primary caregiver for her terminally ill mother. The mother had always wanted to go on a family trip to Las Vegas and, to honor her mother’s request, the employee asked her employer for permission to take unpaid leave to go on the trip. The employer denied the request. However, the employee claimed she was not aware of the denial and proceeded to go on the trip with her mother, during which she served as the mother’s primary caregiver, including taking the mother to the hospital when there was an issue with her medication. The employee was subsequently terminated from her position for an unauthorized leave.
The employee filed a lawsuit under the FMLA. Her employer filed a motion for summary judgment, arguing that the employee did not “care for” her ill mother in Las Vegas for purposes of the FMLA, because she was already providing care at home and the trip was not related to medical treatment. The district court denied the employer’s motion for summary judgment, finding that the FMLA could apply to protect the absence so long as the employee was providing care, regardless of the location.
In affirming the district court’s decision, the Seventh Circuit noted a number of weaknesses in the employer’s argument.
The Seventh Circuit rejected the employer’s argument that the employee had to participate in ongoing treatment while on the trip in order to be covered by the FMLA, noting that the FMLA provisions refer to “caring” for a family member, not providing “treatment,” and that there was nothing in the statute or regulations to suggest that the employee had to be participating in the family member’s treatment while away from home, but not when providing care at home. In fact, the court recognized that the many of the types of care described in the regulations (e.g., providing assistance with medical, hygienic and nutritional needs), does not change because the person is not undergoing active treatment.
In making this ruling, the court confirmed that the regulations do not place any geographic limitations on where the “care” is provided and acknowledged that the FMLA does not provide that the care must be provided at the family member’s home. The court also considered the FMLA regulations describing the information that must be provided on the required medical certification for caring for a family member, emphasizing that “care” is defined expansively and does not include any geographic limitation on providing physical and psychological care.
In this case, the court noted that the employee’s mother’s medical, hygienic and nutritional needs did not change while she was on the trip and, in fact, the employee’s assistance was needed to address medication issues while they were away. At a minimum, the court concluded, the physical care provided by the employee was sufficient to fall within the scope of the FMLA’s coverage.
The Seventh Circuit acknowledged that its ruling is contrary to 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”). In rejecting the employer’s reliance on these cases, the Seventh Circuit surmised that the conclusions in those cases did not follow the plain reading of the FMLA and its regulations which do not require that care for the family member be related to ongoing treatment nor place any geographic limitation on the care.
The lesson for employers?
Of course, employers considering the impact of the Ballard decision may be concerned that employees will attempt to abuse FMLA leave by planning trips and taking ill family members along to obtain FMLA coverage for the time away from work. Ultimately, however, while FMLA abuse is possible, as the Seventh Circuit emphasized, employers may (and should) utilize the medical certification process to flush out improper requests.