Are you willing to bet that your FMLA practices are in compliance with the law? One company recently found out that not all trips to Las Vegas are created equal. My colleague, Peter Murphy, has this post today that reminds employers that FMLA leave can come in all shapes and sizes. Although the case arises outside of Connecticut, the facts and analysis may be applied by other courts here in the jurisdiction.
And yet another case reminds us that slogans don’t always match with reality when employees travel to Las Vegas.
Now, we’re not talking employee misconduct on business travel — though that can certainly lead to trouble too.
But suppose an employee travels to Las Vegas while on FMLA leave for a sick family member. What then? A new case from the Seventh Circuit (Ballard v. Chicago Park District) recently tackled the issue and let’s just say that the employer didn’t have much luck in its gamble to get its decision upheld.
In Ballard, the employee’s mother was terminally ill with cancer, and she lived with the employee. Similar to the Make-A-Wish foundation, the mother received money from a charitable organization to make a final, end-of-life trip to Las Vegas. But because the mother was sick, the employee needed to accompany her mother.
Remember that the FMLA provides an employee with the ability to take leave “in order to care for the . . . parent of the employee, if such . . . parent has a serious health condition.” The mother had a serious health condition, and the employee had taken intermittent FMLA leave previously to care for her mother.
In this instance, the company denied this leave request, however, and ultimately fired the employee for her absences. In the subsequent lawsuit, the parties disputed how the FMLA applies when an employee travels with a sick family member.
The Seventh Circuit rejected the company’s argument that there was a geographic limitation in this part of the FMLA:
. . . the FMLA’s text does not restrict care to a particular place or geographic location. For instance, it does not say that an employee is entitled to time off ‘to care at home for’ a family member. The only limitation it places on care is that the family member must have a serious health condition. We are reluctant, without good reason, to read in another limitation that Congress has not provided.”
The Seventh Circuit also rejected the company’s argument that the employee must provide some sort of treatment to the parent while traveling in order for that travel to constitute “care” of the parent, concluding:
. . . so long as the employee attends to a family member’s basic medical, hygienic, or nutritional needs, that employee is caring for the family member, even if that care is not part of ongoing treatment of the condition.
What’s notable, however, is that this decision appears to be creating a bit of a split with some other circuits — particularly rulings from the First and Ninth Circuits that held that “caring for” requires some level of participation in the ongoing treatment of the employee’s family member.
The takeaway for employers? FMLA leave requests can present difficulty for employers, especially when addressing intermittent leave for family members. Each case presents its own challenges and as this case demonstrates, even a trip to Vegas may be allowed under some circumstances.
It’s easy to be flippant about these things but employers should treat all requests and also ask how the request will look in hindsight. When an employee requests time to spend with a terminally ill parent, that request is going to be viewed differently 18 months later when the employee is fired and the parent is dead.