February 5, 2014
In its January 28, 2014 decision, the United States Court of Appeals for the Seventh Circuit considered whether an employee is eligible for leave under the Family Medical Leave Act (“FMLA”) in order to provide care for a family member traveling away from home. In Ballard v. Chicago Park District, Case No. 13-1445, the Court found that an employee was entitled to take leave to care for her terminally ill mother during a family trip to Las Vegas.
Beverly Ballard was the primary caregiver for her mother, Sarah, who had been diagnosed with end-stage congestive heart failure. Ballard’s care included cooking meals, administering medicine, bathing and dressing, and draining fluids from her mother’s heart. One of the end-of-life goals of Ballard’s mother was to go on a family trip to Las Vegas. After her mother obtained funding from a non-profit foundation that provided such opportunities to terminally ill adults, Ballard requested unpaid leave to attend the trip to Las Vegas with her mother for six days.
After she returned from the trip, Ballard was terminated for unauthorized absences. Ballard filed suit under the FMLA contending that she had the right under the FMLA to take leave “in order to care for the spouse, son, daughter, or parent, if such spouse, son, daughter, or parent has a serious health condition.”
Ballard’s employer contended that she allegedly did not “care for” her mother in Las Vegas, in an attempt to limit the definition of “care” under the FMLA to only those services connected with ongoing medical treatment in the context of the away-from-home trip. The Court took issue with the employer’s argument, finding that the FMLA simply speaks to “care” defined as “physical and psychological care,” not “treatment.” Moreover, the Court found that the FMLA did not speak to any limitation as to the geographic location of where the care could be given. Here, Ballard continued to provide the same qualifying medical, hygienic and nutritional care to her mother while in Las Vegas that she did while at home. Ultimately, since the leave would have been protected if Ballard had stayed at home to provide her mother with that qualifying care, the Court concluded no reason existed to treat the leave any differently simply because it occurred while on a trip.
Notably, the Court declined to follow two Ninth Circuit cases that held that “caring for a family member with a serious health condition ‘involves some level of participation in ongoing treatment of that condition.” Tellis v. Alaska Airlines, Inc., 414 F.3d 1045, 1047 (9th Cir. 2005) quoting Marchisheck v. San Mateo Cnty., 199 F.3d 1068, 1076 (9th Cir. 1999). The Court found that as long as the employee was attending to the family member’s basic medical, hygienic, or nutritional needs, he or she is providing the requisite care even if it is not part of ongoing treatment of the condition. Moreover, the Court noted that neither of the cases explained why care provided at home qualified for FMLA protection, but that same care provided at another location did not.
While the employer was concerned that such an interpretation of the FMLA would lead to an outbreak of employees taking personal vacation with their seriously ill family members in tow to obtain the protection of the FMLA, the Court was not persuaded. Instead, the Court reasoned that the FMLA still allowed the employer to request certification by the family member’s health care provider to ensure that there was no abuse of the leave provision.
Employers should take note that a proper assessment of eligibility for FMLA leave should remain focused on the qualifying language of the statute – is the employee providing care for a family member with a serious health condition? The location of where such care will ultimately be performed will not impact whether such leave is protected under the FMLA.