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Creating Circuit Court Split, Seventh Circuit Rules Employee’s Trip to Las Vegas With Ill Parent May Be Covered by FMLA Leave


FMLA leave or an employee's family vacation?  Sometimes it is tough for an employer to tell.

The FMLA specifically permits employees to use FMLA leave to “care for” an immediate family member with a serious health condition.  In most instances, the circumstances giving rise to the need for FMLA leave are straight-forward, involving providing transportation for the family member to attend medical treatment, providing psychological support and comfort or providing for the family member’s medical, hygienic or nutritional needs.  In other instances, however, the employee’s request to use FMLA to care for a family member appears suspect because it involves what would otherwise seem to be a family vacation.

 

In Ballard v. Chicago Park District, No. 13-1445 (7th Cir., January 28, 2014) the Seventh Circuit Court of Appeals considered whether the FMLA applies to protect an employee’s trip to Las Vegas with her ill mother where the employee claims she was needed to provide physical and psychological care for her mother during the trip.

 

In Ballard, the employee was the primary caregiver for her terminally ill mother.  The mother had always wanted to go on a family trip to Las Vegas and, to honor her mother’s request, the employee asked her employer for permission to take unpaid leave to go on the trip.  The employer denied the request.  However, the employee claimed she was not aware of the denial and proceeded to go on the trip with her mother, during which she served as the mother’s primary caregiver, including taking the mother to the hospital when there was an issue with her medication.  The employee was subsequently terminated from her position for an unauthorized leave. 

 

The employee filed a lawsuit under the FMLA.  Her employer filed a motion for summary judgment, arguing that the employee did not “care for” her ill mother in Las Vegas for purposes of the FMLA, because she was already providing care at home and the trip was not related to medical treatment.  The district court denied the employer’s motion for summary judgment, finding that the FMLA could apply to protect the absence so long as the employee was providing care, regardless of the location.

 

In affirming the district court’s decision, the Seventh Circuit noted a number of weaknesses in the employer’s argument.

 

The Seventh Circuit rejected the employer’s argument that the employee had to participate in ongoing treatment while on the trip in order to be covered by the FMLA, noting that the FMLA provisions refer to “caring” for a family member, not providing “treatment,” and that there was nothing in the statute or regulations to suggest that the employee had to be participating in the family member’s treatment while away from home, but not when providing care at home.  In fact, the court recognized that the many of the types of care described in the regulations (e.g., providing assistance with medical, hygienic and nutritional needs), does not change because the person is not undergoing active treatment.

 

In making this ruling, the court confirmed that the regulations do not place any geographic limitations on where the “care” is provided and acknowledged that the FMLA does not provide that the care must be provided at the family member’s home.  The court also considered the FMLA regulations describing the information that must be provided on the required medical certification for caring for a family member, emphasizing that “care” is defined expansively and does not include any geographic limitation on providing physical and psychological care.

 

In this case, the court noted that the employee’s mother’s medical, hygienic and nutritional needs did not change while she was on the trip and, in fact, the employee’s assistance was needed to address medication issues while they were away.   At a minimum, the court concluded, the physical care provided by the employee was sufficient to fall within the scope of the FMLA’s coverage.

 

The Seventh Circuit acknowledged that its ruling is contrary to decisions in the Ninth and First Circuit Courts of Appeals in which employee trips relating to ill family members were determined to not be covered by the FMLA.  Tellis v. Alaska Airlines, Inc., 414 F.3d 1045 (9th Cir. 2005) (emphasizing that caring for a family member under the FMLA involves some level of participation in on-going treatment); Tayag v. Lahey Clinic Hospital., Inc., 632 F.3d 788, 791 & n.2 (1st Cir 2011) (denying FMLA coverage for a healing pilgrimage to the Philippines and noting that the employee “properly does not claim that caring for her husband would itself be protected leave” if they traveled “for reasons unrelated to medical treatment of [her husband’s] illnesses”).  In rejecting the employer’s reliance on these cases, the Seventh Circuit surmised that the conclusions in those cases did not follow the plain reading of the FMLA and its regulations which do not require that care for the family member be related to ongoing treatment nor place any geographic limitation on the care.

 

The lesson for employers?

Of course, employers considering the impact of the Ballard decision may be concerned that employees will attempt to abuse FMLA leave by planning trips and taking ill family members along to obtain FMLA coverage for the time away from work.  Ultimately, however, while FMLA abuse is possible, as the Seventh Circuit emphasized, employers may (and should) utilize the medical certification process to flush out improper requests.

 
 
 
 

Employee’s “Faith Healing” Trip With Ill Spouse Is Not Protected By The FMLA


Most employers assume that an employee may not use FMLA to take a vacation.  However, the line between a vacation, and time away for medical care, may not always be so clear.

An employee who tried to use FMLA leave to go on a “faith healing” trip for her ill spouse recently found herself on the wrong side of that line in Tayag v. Lahey Clinical Hospital, Inc., No 10-1169 (1st Cir., Jan. 27, 2011).  

*   *   *

In Tayag, the employer, Lahey Clinical Hospital, Inc., provided its employee, Maria Lucia Tayag, with intermittent FMLA from 2003 until July, 2006 to enable Ms. Tayag to provide care for her ill spouse.  There was no dispute that her husband suffered from serious medical conditions, including gout, chronic liver and heart disease and kidney problems.

Ms. Tayag later sought to take a 7-week leave to go with her husband on a faith-healing pilgrimage to the Philippines.  Her husband’s doctor submitted a note indicating that she needed the leave because her husband needed physical assistance on a regular basis.  However, her husband’s cardiologist provided an FMLA certification indicating that Ms. Tayag’s husband was “presently . . . not incapacitated.”

Not surprisingly, Ms. Tayag’s employer denied her leave request and, when she failed to respond to her employer’s messages directing her to return to work (because she was on her trip), Ms. Tayag’s employment was terminated.

Ms. Tayag filed claims for interference and retaliation under the FMLA.  Ms. Tayag argued that the faith-healing pilgrimage constituted medical care under the FMLA and that she was needed to care for her spouse while he received such medical care. 

The court disagreed, finding that during her trip, Ms. Tayag and her husband prayed, went to Mass, spoke with others in the pilgrimage and visited other churches and family.  No conventional medical treatment was provided.  Ms. Tayag’s husband saw no doctors or healthcare providers on the trip and his own cardiologist said he was not incapacitated.  The court found that FMLA leave to care for an immediate family member does not extend to vacations in which no medical care is provided. 

Bottom line in this case:  No medical care, no FMLA.  But at least Ms. Tayag got a nice vacation.

This Blog should not be construed as legal advice or as pertaining to any particular factual scenarios.

 
 
 
 
 

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.