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Most human resources personnel know that under the Family and Medical Leave Act (“FMLA”), covered employers must give eligible employees twelve workweeks off in a twelve-month period “to care for” a spouse, child, or parent with a serious health condition.  However, what happens when caring for a terminally ill parent, physically and psychologically, brings the employee to Vegas for vacation?  Recently, the Seventh Circuit Court held this constitutes “caring for” the family member and is a proper use of the leave.

In Ballard v. Chicago Park District, an employee was her mother’s primary caregiver while her mother suffered from end-stage congestive heart failure.  The employee cooked her mother’s meals, administered medicine, and otherwise took care of her.  The mother had always wanted to take a family trip to Las Vegas and was able to get funding from a nonprofit to fulfill this lifelong dream.  The six-day trip was planned and the employee cared for her mother during the trip.  The employer terminated the employee several months after the trip for unauthorized absences (i.e., the trip).  The District Court held the employee’s absences were appropriate under FMLA and it was irrelevant where the care was given so long as the employee was caring for the family member.  The employer appealed to the Seventh Circuit.

The Seventh Circuit Court explained that under the FMLA, it does not matter where the care is rendered, whether at home or away from home, as long as the family member has a serious health condition (which was not in dispute) and the employee is rendering “care.”  The Court held the employee cared for her mother by satisfying her mother’s medical, hygienic, and nutritional needs.  For example, at one point on the trip the employee had to find another source of insulin and pain medicine when a hotel fire prevented the mother from retrieving these medications from her room.

The Court addressed the employer’s concern that employees will take trips with seriously ill family members just to be able to use FMLA leave.  The Court rejected that concern by pointing to the facts of this case which patently do not support that conclusion: the employee planned the trip with her mother’s social worker as part of her mother’s end-of-life hospice treatment; she consulted her mother’s doctor about the trip; and she provided care on the trip.

Employers should be aware, as the Court pointed out, this case creates a split with the First and Ninth Circuits which both require travel be related to ongoing treatment, not merely to care for a family member.  Employers who become aware of an employee taking FMLA leave for a “pleasure” trip should consult with counsel before making any decisions about the appropriateness of using FMLA leave.

Brody and Associates regularly provides counsel on the FMLA, as well as employment law issues in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.