*By Helena Oroz
The beginning of that tag-line is perfectly obnoxious and overly worn, but the ending is new, and, interestingly enough, true—at least according to the Illinois federal court that recently handed down its decision in Ballard v. Chicago Park District. In Ballard, the U.S. District Court for the Northern District of Illinois held that an employee who provided care to her terminally-ill mother during a Las Vegas vacation “cared for” her mother within the meaning of the FMLA.
In Ballard, the employee filed suit under the Family and Medical Leave Act (“FMLA”) after she was terminated for unauthorized absences from work. She alleged that her former employer interfered with her rights by denying her request for leave to care for a sick parent. The employee was the primary caretaker for her terminally ill mother and did almost everything for her: prepared her meals; administered medicine; operating a pump to remove fluids from her mother’s heart; bathed her; provided her with transportation; and provided comfort and support, among other responsibilities. Why would her employer deny her leave under such seemingly clear-cut circumstances?
Vegas, baby.
Yes, the employee in this case requested leave to accompany her sick mother to that adult playground in the desert, Las Vegas, Nevada; and this detail, probably more than any other in this case, has captured the hearts and minds of employers (and their lawyers) everywhere. Vegas? Vegas?! Why would a super fun trip to Vegas be FMLA-protected?
The court closely reviewed the (pre-2009 amendment) FMLA regulations to make just that determination: whether the employee was entitled to leave under the FMLA to “care for” her mother on the Vegas trip, as the employee argued. The employer argued that the trip was not FMLA-protected because the “care” has to have some connection with the family member’s need for treatment, and the mother did not seek treatment during the trip. The court disagreed, finding that the FMLA includes no such limitation.
Under the FMLA, an eligible employee is entitled to leave to “care for” a parent with a “serious health condition.” The Court noted that FMLA’s implementing regulations explain that “to care for” encompasses both physical and psychological care; but such care does not depend on a particular location or on participation in medical treatment itself.
There was no question in the case that the employee’s mother suffered from a “serious health condition” (end-stage congestive heart failure); that she was unable to care for her own basic needs; and that the employee provided physical care for her mother at home. The court reasoned that because her mother’s needs did not change during the trip, the employee also “cared for” her mother while traveling to and vacationing in Las Vegas.
The court also gave short shrift to the employer’s argument that the employee did not “care for” her mother because there were no plans for the mother to seek medical care or treatment in Las Vegas. The court found “no statutory or regulatory text stating something to the effect that ‘care’ must involve some level of participation in the ongoing treatment of the family member’s condition under the FMLA” as the regulations cover “terminal illnesses for which there is no active treatment at all.”
The court opined that at base, the text of the FMLA requires only that the employee sought leave to “care for” her mother who had a “serious health condition.” “So long as the employee provides ‘care’ to the family member, where the care takes place has no bearing on whether the employee receives FMLA protections.”
Fiji, anyone?
Whether or not such a decision actually “broadens” the FMLA is debatable. While not relevant to the legal analysis, it should be noted that the Vegas trip here was a gift, a charitable grant from an organization that grants wishes to persons with terminal illnesses. The employee asked for leave to take the trip so that her dying mother could take the trip. This is not a common situation for most employers (and arguably, considering the circumstances, one that the employer could have met with less scrutiny and more compassion).
It does, however, seem to open the door to abuse, a la “I need two weeks off to travel to (fill in fun destination) to care for my ill (family member)!” But at the end of the day, the same rules would apply to such a request as to any regular FMLA-leave request, and the same tools would be available to the employer to determine its legitimacy.
*Helena Oroz practices in all areas of labor and employment law. For more information about FMLA leave, please contact Helena (hot@zrlaw.com) at 216.696.4441.
