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.•


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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  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

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