What Happens in Vegas…May Be Protected FMLA Leave

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Yesterday, the Seventh Circuit Court of Appeals agreed with a district court and found that a woman's trip to Las Vegas with her terminally-ill mother qualified as FMLA leave.  See Ballard v. Chicago Park District, No. 10-C-1740, January 28, 2014.  

Plaintiff Beverly Ballard worked for the Chicago Park District and cared for her mother, Sarah, who was receiving hospice care for end-stage congestive heart failure.  During a meeting attended by Beverly, Sarah, and the social worker to discuss Sarah's end-of-life goals, Sarah told her daughter she had always wanted to take a family trip to Las Vegas. With help from a nonprofit agency, the social worker secured funding for the trip, and Beverly and Sarah headed to Vegas for six days of fun-filled, Sin City tourist attractions.

During the trip, Beverly continued to provide care to her mother, even finding replacement insulin when a fire at their hotel prevented them from accessing Sarah's medicine.  The Chicago Park District terminated Beverly's employment for unauthorized absences during the trip, and Beverly filed suit.

The FMLA provides eligible employees with twelve weeks of leave to "care for" a spouse, son, daughter, or parent of the employee if the spouse, son, daughter, or parent has a "serious health condition."  The Chicago Park District argued, in part, that Beverly did not "care for" her mother in Las Vegas because she was already providing her mother with care at home, and the trip was not related to any continuing medical treatment.

There was no dispute that Sarah had a serious health condition.  The primary issue in the case was what qualifies as "caring for" a family member under the FMLA.

Focusing on the text of the FMLA, the Court noted that the section granting the leave entitlement speaks of "care," not treatment, and the statutory text does not restrict care to a particular place or geographic location.  It further supported its conclusion with language from the FMLA regulations, which provide that care for a family member encompasses "both physical and psychological care."  

The Court's opinion is noteworthy for several reasons.  First, the Court recognized that its decision creates a split with the First and Ninth Circuits on the issue of the definition of "caring for" a family member.  A split in the Circuits could make the issue ripe for a review by the Supreme Court.  Second, the Court acknowledged, but dismissed, the Chicago Park District's concern that the Court's expansive reading of the term "caring for" will open the door to increased FMLA requests and create a greater potential for FMLA abuse.  

For employers already wary of the complications inherent in administrating FMLA leave, remember that if you have any reason to question the legitimacy of an employee's FMLA leave, you have the right   to request medical certification.  

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