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
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

  2. Wow, over a quarter million dollars? That is a a lot of commissary money! Over what time frame? Years I would guess. Anyone ever try to blow the whistle? Probably not, since most Hoosiers who take notice of such things realize that Hoosier whistleblowers are almost always pilloried. If someone did blow the whistle, they were likely fired. The persecution of whistleblowers is a sure sign of far too much government corruption. Details of my own personal experience at the top of Hoosier governance available upon request ... maybe a "fake news" media outlet will have the courage to tell the stories of Hoosier whistleblowers that the "real" Hoosier media (cough) will not deign to touch. (They are part of the problem.)

  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  5. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

ADVERTISEMENT