Q. One of our employees has asked for leave to care for a family member in another state. Does the travel time to and from the family member count as part of the FMLA leave?

A. This clearly is a grey area in the law at present. Very few courts have given us guidance as to whether travel time itself (to care for a family member with a serious health condition) qualifies as part of the FMLA leave allotment. My quick take: If it's clear that the employee will be required to care for the family member beginning on Day X, then a court likely would find that the travel necessary to get to the destination by Day X is so intertwined with the need for leave that it should be considered part of the protected leave as well.

Although not directly on point, take the recent case of Lane v. Pontiac Osteopathic Hospital. In this case, the plaintiff was required to care for his mother, cook her meals and transport her to medical appintments. However, the Court supported the employer's denial of FMLA leave when the plaintiff sought leave to clean up his mom's flooded basement. Interestingly, the plaintiff claimed that his mother's condition would have worsened had he not taken time off to claen the basement.

In finding for the employer, the court grappled with the concepts of "direct" vs. "indirect" care for a family member. The court's ruling implies that where acts like "travel" to the family member are so intertwined or necessary to the need for leave itself, it should be considered part of the FMLA leave. See also Tayag v. Lahey Clinic Hospital, Inc. (pdf), which upheld a denial of FMLA leave because a significant portion of a trip to meet with a "faith healer" actually was spent visiting socially with family.