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DTCI: 'Caring for' family under FMLA

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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.•

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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.

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