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Recreational Travel with Ill Family Member May Be Protected Under FMLA

By Amanda C. Van Wieren  2/26/2014
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An employee accompanying her terminally ill mother on a “bucket list” trip to Las Vegas was entitled to Family and Medical Leave Act (FMLA) protections, the 7th U.S. Circuit Court of Appeals ruled.

Former Chicago Park District employee Beverly Ballard was the primary caretaker for her mother, Sarah. Ballard lived with her mother, cooked for her, administered her medication, and bathed and dressed her. Facing end-stage congestive heart failure, Sarah mentioned that she had always wanted to take a family vacation to Las Vegas, and hospice workers secured funding through a charitable organization serving terminally ill adults.

Ballard took off work and accompanied her mother on a six-day trip to Las Vegas. Ballard continued to perform her regular caretaking duties during the trip. On one occasion, she drove her mother to the hospital for replacement medications when a fire prevented them from getting to their hotel room, where the medications were stored.

The Chicago Park District terminated Ballard, taking the position that, because the trip was not related to ongoing medical treatment, her absences were not covered under the FMLA’s provision allowing employees to take leave “in order to care for” a seriously ill family member. The U.S. District Court for the Northern District of Illinois disagreed and refused to dismiss Ballard’s suit against the Park District.

On appeal to the 7th Circuit, the court reasoned that whether Ballard’s trip was protected leave depended on the FMLA definition of “care.” The court noted that the use of the word “care” in the operative provision of the FMLA was different from “treatment,” used elsewhere throughout the act; that the FMLA did not contain any geographic or location-specific limitations; and that the FMLA did not explicitly define “care.” Looking instead to closely related federal regulations on health-care-provider certification, the court defined “care” as attending to “basic medical, hygienic or nutritional needs.”

Accordingly, the court concluded that Ballard had “cared” for her mother in Las Vegas even though she didn’t receive medical treatment during the trip. The FMLA clearly considered providing hospice and palliative care to terminally ill family members at home, the court said, but it declined to draw a distinction when such care was provided while traveling. In doing so, the 7th Circuit acknowledged that its holding contradicted 1st and 9th circuit rulings, which required travel to be for medical treatment for it to fall under the FMLA. The court also acknowledged that while its ruling was not the most “sensible,” finding otherwise would be inconsistent with the text of the FMLA.

Ballard v. Chicago Park District, 7th Cir., No. 13-1445 (Jan. 28, 2014).

Professional Pointer: In light of this ruling, employers in the 7th Circuit should be wary of denying FMLA leave requests involving travel—in the eyes of the court, it doesn’t so much matter where caretaking happens, so long as “care” is provided.

Amanda Van Wieren is an attorney at the Portland, Ore., office of Ogletree, Deakins, an international labor and employment law firm representing management. 

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