The FMLA provides an eligible employee the right to 12 workweeks of leave to care for the employee’s spouse, child or parent with a serious health condition. Consequently, employers generally grant employee requests to use FMLA leave when their family member receives medical treatment or undergoes a surgical procedure. What happens when an employee requests FMLA leave to care for a family member during a trip to Hawaii or the Italian Riviera? Employers are sometimes suspicious of such requests, believing that the employee is improperly trying to exhaust FMLA instead of vacation leave. Recently, the U.S. Court of Appeals in Chicago addressed this issue in Ballard v. Chicago Park District, and found that an employee who sought to “care for” a family member during a trip to Las Vegas was within the meaning of the FMLA.
Former Park District employee Beverly Ballard requested unpaid FMLA leave so that she could accompany her mother on a trip to Las Vegas. Ballard’s mother, Sarah, had been diagnosed with end-stage congestive heart failure and began receiving hospice support. Ballard lived with her mother and acted as her primary caregiver. She cooked, administered medication and bathed and dressed Sarah. A hospice social worker met with Sarah to discuss her end-of-life goals. Sarah said she wanted to take a family trip to Las Vegas. The social worker was able to arrange a six-day trip to Las Vegas for Sarah’s family through a nonprofit organization that organizes such opportunities for terminally ill adults.
The District denied Ballard’s request to take FMLA leave. Nonetheless, Ballard went on the trip with her mother as planned. During the trip, Ballard cared for her mother in the same way she did at home. In addition, Ballard drove her mother to a hospital when a fire at their hotel denied them access to Sarah’s medication. Several months later, the District terminated Ballard for unauthorized absences taken as a result of the trip. Ballard then sued the District, alleging that its denial of her request for leave and subsequent termination for excessive absences violated the FMLA. In its defense, the District argued that Ballard did not “care for” her mother in Las Vegas because she was already providing Sarah with care at home. Also, the trip was not related to a continuing course of medical treatment. In making this argument, the District relied on two cases decided by the US Court of Appeals for the Ninth Circuit which is headquartered in California.
The Court of Appeal in Chicago declined to follow the Ninth Circuit cases relied on by the District. The Court rejected the proposition that “caring for” a family member with a serious health condition does not require “some level of participation in ongoing treatment of that condition.” Instead, the Court held that, so long as the employee attends to the family member’s basic medical, hygienic or nutritional needs, that employee is “caring for” a family member, even if that care is not part of ongoing treatment of the condition. Further, the Court said there is no distinction in FMLA regarding the geographic location of the care. Thus, the Court concluded Ballard’s request for leave fell within the scope of the FMLA. The Court also noted that the facts of this case arose out of the hospice and palliative care context which suggests that the outcome could have been different under another factual scenario.
The Court’s decision in Ballard now creates a split among the federal courts regarding this issue. Until the U.S. Supreme Court decides this issue, California employers may still choose to rely on the Ninth Circuit’s interpretation that “caring for” a family member with a serious health condition requires some level of participation in ongoing treatment of that condition. Under this definition, California employers could legally deny a request for unpaid FMLA leave in circumstances similar to Ballard’s. However, just because the law may allow an employer to deny such a request, it does not necessarily mean that an employer should to do so. Sometimes the importance of showing compassion towards employees with terminally ill family members outweighs the minimum requirements of the law.