Can an employee’s vacation to take care of a family member be considered FMLA leave? “Yes,” according to a recent federal district court decision from the Northern District of Illinois. In that case, the court upheld an employee’s right to take FMLA leave to care for her mother during a recreational trip to Las Vegas.
In Ballard v. Chicago Park District, the employee’s mother was diagnosed with end-stage congestive heart failure and was not expected to live. The employee was the primary caregiver for her mother. As her mother’s primary caregiver, she was responsible for the following: preparing her meals, administering her insulin shots and medicine, operating a pump to remove fluids from her heart, bathing her, providing her transportation, and ensuring she made it back and forth to and from her bed.
The employee’s mother was granted a “make a wish” trip to Las Vegas from a local charitable organization because she was terminally ill. The trip was to last six days. The employee requested FMLA leave in order to care for her mother during the trip. The employer denied her request, but the employee went anyway. During the trip, the employee generally looked after her mother, but also “spent time with her mother playing slots, shopping on the strip, people-watching, and dining at restaurants.” The employee acknowledged that the trip was purely a vacation. The employee was terminated for unauthorized absences and brought suit alleging that her employer interfered with her rights under the FMLA.
The court found that it didn’t matter where the employee was providing care to her mother, so long as she was providing it. In this case, the court recognized that there was no question that the employee’s mother suffered from a covered “serious health condition,” was unable to care for her own basic medical, hygienic, or nutritional needs, and that the services the employee provided to her mother constituted physical care within the meaning of the FMLA. In sum, the employee “cared for” her mother during their trip to Las Vegas. The court concluded that “[s]o 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.”
It should be noted that the holding in Ballard is in direct contrast to other similar cases where courts have determined that trips to care for a loved one may only count as FMLA leave when the family member for whom the employee is caring is taking the trip to seek treatment, some form of medical care or therapy. As a result of the Ballard case, employers now take a risk when they allow FMLA leave only when the trip includes treatment or some form of medical care. It is important to note that no circuit court of appeals has adopted this stance. The decision does illustrate that a seriously or terminally ill relative may invoke a court’s sympathies in a particular situation. Employers should keep that in mind and be aware that such factors should be taken into consideration when weighing whether to deny FMLA leave in situations involving travel by an employee to care for a loved one.