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. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

ADVERTISEMENT