Last month, in Ballard v. Chicago Park District (Case No. 13-1445, 7th Cir. 1/28/14), a federal court of appeals addressed whether an employee was eligible for FMLA leave while vacationing in Las Vegas with her terminally ill mother. In a decision which appears to stack the deck against employers, the court determined that the jaunt to Vegas was an acceptable use of FMLA leave.
What happens in Vegas… ends up in the court record
Beverly Ballard worked for the Chicago Park District. Her mother was diagnosed with end-stage congestive heart failure in 2006 and began receiving hospice support. Ballard lived with her mother and acted as her primary caregiver. In addition to cooking and administering her medication, she bathed, dressed, and prepared her mother for bed. This type of in-home care clearly qualified as FMLA leave under ordinary circumstances.
As part of a discussion of “end-life goals,” Ballard’s mother said that she had always wanted to take a family trip to Las Vegas. Based on this request, the mother’s social worker took action by securing funding for the trip through a non-profit agency. Ballard requested unpaid leave from her employer to accompany her mother on the Vegas trip. The request was denied, but Ballard went on the trip anyway (whether she knew of the denial ahead of time was in dispute).
During the trip, Ballard continued to serve as her mother’s caretaker while also participating in tourist activities. The two played slots, shopped, people-watched, and dined at restaurants. At one point during the Vegas visit, Ballard unexpectedly had to take her mother to the hospital because a fire prevented them from obtaining medicine from the room.
Just over a month after the trip, Ballard’s employer terminated her for unauthorized absences caused by the unapproved trip. She then sued the Park District for violating her FMLA rights.
The Vegas trip treatment
The Seventh Circuit noted that the FMLA allows employees to take protected leave in order “to care for” a family member with a serious medical condition. The employer argued that “care” in the context of a trip away from home applied only to care related to ongoing medical treatment. The court disagreed and determined that the language of the FMLA and its governing regulations did not limit “care” to a certain locale. The court reasoned that Ballard’s mother’s care needs from her daughter were the same in Las Vegas as they were at home.
The Park District raised the concern that employees would be able to bluff their employers by taking FMLA leave for personal vacations simply by bringing along a seriously ill family member. The court found the actual reason for Ballard’s leave was not properly before the court at that time, but did observe that if an employer is concerned with such activity, it should require adequate certification from a family member’s health care provider of the need for the employee to accompany them on a trip.
Other courts (neither of which are controlling in Oklahoma) ruled the opposite way, and required that any away-from-home care must involve medical treatment. Those courts refused to deem an employee eligible for care related to others—one case involved the relocation of the employee’s son to another country, another involved picking up a car and driving it across the country for the driver’s pregnant wife, and the third involved a “healing pilgrimage” to the Philippines. The Seventh Circuit chose not to follow the other cases, based on their reading of the FMLA statute and regulations.
First, it is important to note that this case was decided in the Seventh Circuit, a court which has authority over Illinois, Indiana and Wisconsin. The decision is now the law in those three states, but is not binding on the other 47 states, including Oklahoma. Thus, it is uncertain whether a court in Oklahoma would reach a similar decision.
Despite the lack of clarity between the courts, the main takeaway here is that FMLA eligibility comes in all shapes and sizes. This case serves as a reminder that not all FMLA leave is for an employee’s own health condition. Oftentimes employees take FMLA leave to care for family members who are seriously ill – whether it is their children, a spouse or, as in this case, their parent.
The rule of thumb is to take every request for FMLA leave seriously. At first blush, a trip to Las Vegas or any tourist destination seems like an outlandish way to take FMLA leave. Don’t make an unreasoned or knee-jerk decision that the employee is ineligible. Instead, treat all FMLA claims the same. Establish policies and procedures to require adequate and appropriate medical certification for any FMLA leave and follow those policies.