ILNews

DTCI: 'Caring for' family under FMLA

Back to TopCommentsE-mailPrintBookmark and Share

freybergerGenerally stated, the Family and Medical Leave Act gives eligible employees the right to 12 workweeks of leave “[i]n order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.” 29 U.S.C. §2612(a)(1)(C). What happens when a family member is diagnosed with a terminal illness and begins the somber review of their bucket list, noticing that a trip to Las Vegas is still unchecked? Would taking time to accompany and care for that family member be included in the definition of caring for under the FMLA? For instance, if a father is diagnosed with terminal cancer and been given the opinion that he has six months to live, can you request leave to take him to Italy to meet distant relatives because it has always been his dream to do so?

A similar question was presented to the 7th Circuit Court of Appeals and the decision was rendered Jan. 28. In Ballard v. Chicago Park District, 2014 U.S. App. LEXIS 1747; 2014 WL 294550, the issue was whether the FMLA applies when an employee requests leave to provide physical and psychological care to a terminally ill parent while that parent is traveling to Las Vegas to fulfill an end-of-life goal. The employee had been providing care to her mother before the trip. Through the help of a hospice worker, the funding for the trip was being provided by the Fairygodmother Foundation, a nonprofit organization that facilitates such opportunities for terminally ill adults.

The court ultimately found that this was covered by the FMLA. In doing so, the court parted ways with the 1st and 9th Circuits on this issue. The 7th Circuit pointed out that the FMLA does not restrict care of a family member to a particular geographic location. Care for an individual in Las Vegas is the same as care for that individual at home. The court also stated that the care provided can be both physical and psychological under the applicable regulations and would include providing comfort and reassurance for a family member who is receiving inpatient or home care, although the court refused to restrict it to situations of in-home care, noting that it was an example rather than an exclusive definition.

In Ballard, the employee was actively caring for her mother before the Las Vegas trip. She also provided physical care for her mother while on the trip, so the need for leave was not solely to provide moral support. It could conceivably be a different outcome if the need for leave was to accompany a family member on a trip while no actual medical care is being rendered. However, the 7th Circuit seemed to address this potential situation by stating, “[a]ny worries about opportunistic leave-taking in this case should be tempered by the fact that this dispute arises out of the hospice and palliative care context.” This seems to give significance to the dire situation being faced by the family, making it logical that psychological care was needed, and the employee was not using the opportunity to take a vacation.•

__________

Greg Freyberger is a partner in the litigation section of the Evansville firm Kahn Dees Donovan & Kahn LLP, and is a member of the board of directors of DTCI. The opinions expressed in this article are those of the author.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Future generations will be amazed that we prosecuted people for possessing a harmless plant. The New York Times came out in favor of legalization in Saturday's edition of the newspaper.

  2. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

  3. I pd for a bankruptcy years ago with Mr Stiles and just this week received a garnishment from my pay! He never filed it even though he told me he would! Don't let this guy practice law ever again!!!

  4. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  5. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

ADVERTISEMENT