“This case is about what qualifies as ‘caring for’ a family member under the Act. In particular, it is about whether the [Family and Medical Leave Act] applies when an employee requests leave so that she can provide physical and psychological care to a terminally ill parent while that parent is traveling away from home.” The Seventh Circuit holds that an employee could use FMLA leave to accompany her mother to Las Vegas as her basic care support.
Ballard v. Chicago Park District, No. 13-1445 (7th Cir. Jan. 28, 2014) : Beverly Ballard cared on a daily basis for her mother, Sarah, who suffered with end‐stage congestive heart failure. Through a social worker at her hospice, Sarah received a grant take a family vacation to Las Vegas. Ballard requested leave from her employer (Park District) to travel with her mother, which was denied, although the record was unclear when the denial occurred. Several months later, the Park District terminated Ballard for her allegedly unauthorized absences accumulated during her trip.
On interlocutory appeal, the Seventh Circuit affirms the district court’s decision denying a motion for summary judgment. The central promise of the family-care provisions of the FMLA is that employees are entitled to leave “[i]n order to care for” a family member with a “serious health condition.” 29 U.S.C. § 2612(a)(1)(C). The Park District argued that only ongoing medical treatment, not routine support, was covered by this section. But the Seventh Circuit holds that the FMLA speaks in terms of “care,” not “treatment.” Moreover, the FMLA nowhere limits where such care could be provided.
Citing the Department of Labor’s regulation, 29 C.F.R. § 825.116 (2008), it favors the employee’s argument that even basic care was covered:
“Sarah’s basic medical, hygienic, and nutritional needs did not change while she was in Las Vegas, and Beverly continued to assist her with those needs during the trip. In fact, as the district court observed, Beverly’s presence proved quite important indeed when a fire at the hotel made it impossible to reach their room, requiring Beverly to find another source of insulin and pain medicine. Thus, at the very least, Ballard requested leave in order to provide physical care. That, in turn, is enough to satisfy 29 U.S.C. § 2612(a)(1)(C).”
The Seventh Circuit declares its split with cases in the First and Ninth Circuits, holding that travel unrelated to medical treatment was not supported by the FMLA. “[N]one of the cases explain why certain services provided to a family member at home should be considered ‘care,’ but those same services provided away from home should not be.” And the panel rejects the argument that a liberal construction of care will foster abuse of FMLA leave:
“[The Park District] also raises the specter that employees will help themselves to (unpaid) FMLA leave in order to take personal vacations, simply by bringing seriously ill family members along. So perhaps what the Park District means to argue is that the real reason Beverly requested leave was in order to take a free pleasure trip, and not in order to care for her mother . . . However, we note that an employer concerned about the risk that employees will abuse the FMLA’s leave provisions may of course require that requests be certified by the family member’s health care provider. See 29 U.S.C. § 2613.”
Such a policy concern, ultimately, was not cause to ignore the statutory and regulatory language, holds the panel