Is Taking a Terminally Ill Family Member on a “Last Hurrah” Trip Covered Under the Family Medical Leave Act?

An interesting case coming out of the 7th Circuit Court of Appeals creates a circuit split in regards to the issue of what activities constitute “care” of a family member with a serious health condition. In Ballard v. Chicago Park District an employee was denied unpaid Family Medical Leave Act (FMLA) leave in order to take her terminally ill mother on a “last hurrah” trip to Las Vegas. The employee chose to go on the trip anyway. She was terminated a few months later for absences incurred while she was on the trip.

The employee sued her employer arguing that firing her interfered with her rights under the FMLA. The 7th circuit agreed with the district court that taking her terminally ill mother to Vegas could constitute fall under the employee’s FMLA entitled 12 weeks of unpaid leave to “care for” a family member with a serious health condition.

The court reasoned that the statute uses the word “care” rather than “treatment” and it would be wrong to read into the language a more restrictive interpretation of what is required to meet the level of care. The court also said that the text of the statute does not specify where the care must take place. There is nothing in the text that indicates that the care must take place at home rather than on a trip. The employee had been caring for her mother at home before the trip. It was important to the court that the employee provided the same care on the trip as at home. The court also took note of actual instances of care like when the employee took her mother to the hospital to get new medicines when a hotel fire prevented her mother from accessing the medications she brought from home.

Other federal circuit courts have ruled that travel unrelated to medical treatment is not covered by the FMLA. The 1st and 9th Circuit Court of Appeals have both ruled that non treatment related travel is not covered under the FMLA.

In so holding, the Seventh Circuit wrote that because the text of the FMLA used the term “care” rather than “treatment” it was inappropriate to read into the statute any requirement that care provided on a trip be related to a particular course of treatment. The Court reasoned that the FMLA’s text “does not restrict care to a particular place or geographic region.” Therefore the FMLA’s coverage is not limited to care at home as opposed to away on trips.  As to whether the employee actually “cared for” her mother in Las Vegas, the Court pointed out that she had provided the same level of care she had provided at home.  For example, the employee took her mother to the hospital to pick up additional medication when a fire at their hotel prevented them from accessing the medicine they had brought with them.  The Court found that was sufficient to constitute “care” as defined by the FMLA.

This decision shows that the FMLA protects more than just traditional types of care activities like taking a relative to the doctor. If you have been fired while on FMLA leave, or were denied the ability to take leave to deal in any way with your own or a family member’s serious health condition then you need to speak with an attorney. In Georgia contact attorney Ben Kandy to discuss your issue.

This article is not intended to constitute legal advice and does not create an attorney client relationship between the reader and attorney Benjamin Kandy.

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