Can a vacation to Las Vegas be covered by FMLA? According to the Seventh Circuit Court of Appeals, if an employee can prove he or she was providing care to a disabled family member while gallivanting in casinos, that employee will qualify for FMLA leave.
Among other things, the FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave to care for the employee’s spouse, child, or parent who has a serious health condition.
In the past, Courts have generally required that care to take place at home. For example, in Tellis v. Alaska Airlines, Inc., the Ninth Circuit declined to extend FMLA protections to an employee who flew cross-country to pick up a car and drive it back to his pregnant wife. The court held that “caring for a family member with a serious health condition `involves some level of participation in ongoing treatment of that condition.’” (See also, Tayag v. Lahey Clinic Hosp., Inc., where the First Circuit considered whether an employee who took leave to accompany her seriously ill husband on a “healing pilgrimage” to the Philippines qualified for leave under the FMLA).
A recent decision by the Seventh Circuit, however, broadens the scope of allowable FMLA absences. In Ballard v. Chicago Park District, a Chicago Park District employee, Beverly Ballard, lived with and provided daily care to her mother who suffered from end-stage congestive heart failure. The employee’s mother was terminally ill and receiving hospice support. As part of that support, her mother met with a social worker to discuss end-of-life plans. The employee’s mother expressed that she had always wanted to take a family trip to Las Vegas and consequently, the social worker was able to secure funding for a six-day trip.
The employee requested unpaid leave from her employer in order to accompany her mother on the trip and the two traveled to Las Vegas where the employee continued to serve as her mother’s caregiver. Several months later, the employee was terminated for accumulating unauthorized absences during the Las Vegas trip.
The employee sued under the FMLA and the employer filed for summary judgment, arguing that the employee did not “care for” her mother in Las Vegas, because (1) she was already providing care at home, and (2) because the trip was unrelated to the mother’s continuing course of medical treatment. After the District Court denied the employer’s motion, the employer appealed.
The Court of Appeals affirmed the District Court’s ruling and found that because the employee tended to her mother’s basic medical, hygienic and nutritional needs during the Las Vegas trip, she was entitled to FMLA leave. The Court’s decision centered on the fact that the FMLA regulations do not set forth any geographical limits on where such care could be provided.
In justifying its divergence with the First and Ninth Circuits, the Seventh Circuit held that “none 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.”
The Court also dismissed the employer’s concerns that such an interpretation of the FMLA regulations would result in abuse of FMLA’s leave provisions. In so holding, the Court stated:
“[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.”
The Ballard case signals a need for all employers and their HR representatives to take a different approach to certain FMLA leave requests. From a practical standpoint, if presented with an employee’s FMLA request to care for a family member during a vacation, employers may want to consider requiring that the employee provide the following information as part of their request to ferret out potential FMLA abuse:
– Whether the primary purpose of the trip is for personal or medical reasons;
– Whether a healthcare provider certified the trip is part of the treatment associated with the family member’s serious health condition; and
– Whether the employee will be providing any care to the family member during the trip
As always, employers are also advised to approach each FMLA leave request on a case-by-case basis and contact counsel when questions arise regarding the validity of an FMLA leave request.