March 24, 2014
Leave of absence: Can a trip to Las Vegas be FMLA-qualifying?

by Mike Maslanka

In a recent decision, the 7th Circuit Court of Appeals—which covers Illinois, Indiana and Wisconsin—said a trip to Sin City can qualify as protected leave under the Family and Medical Leave Act (FMLA). We wanted to let you know about this potential FMLA land mine.

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Very ill mother, very concerned daughter

Beverly Ballard worked for the Chicago Park District. Sadly, her mother, Sarah, was diagnosed with end-stage congestive heart failure and began receiving hospice support. Beverly lived with her mom and acted as her primary caregiver. She cooked meals, administered insulin and other medications, drained fluids from her heart, bathed and dressed her, and prepared her for bed.

In a conversation with a social worker from the hospice, Beverly and Sarah discussed what's commonly known as a "bucket list" — that is, the things Sarah would like to do before she passed on. One of those wishes? Take a trip to Las Vegas.

Beverly goes to Vegas, gets fired

Beverly requested unpaid leave, but it was denied. (She later claimed she didn't get notice of the denial before she and Sarah left for Las Vegas.) The women went on their trip as planned, and Beverly cared for her mother in Las Vegas as she had back in Chicago.

Several months later, Beverly was terminated for unauthorized absences, including the absences accumulated during her trip. She sued her former employer, and the park district asked the trial court to dismiss the case. The court denied that request, explaining, "So long as the employee provides 'care' to the family member, where the care takes place has no bearing on whether the employee receives FMLA protections." In an unusual move, the appeals court decided to hear the appeal immediately.

Care vs. treatment

The appeals court agreed with the trial court. It looked at the FMLA instructions — i.e., the language of the statute and the regulations implementing it — and noted that they talk in terms of "care" of a family member, not "treatment" of a family member.
In hard-to-argue-with language, the appeals court cut to the chase:

If Beverly had sought leave to care for her mother in Chicago, her request would have fallen within the scope of the FMLA. So too if Sarah had lived in Las Vegas instead of with her daughter, and Beverly had requested leave to care for her mother there. Ultimately, other than a concern that a straightforward reading will "open the door to increased FMLA requests," the park district gives us no reason to treat the current scenario differently. Yet even if we credit the park district's policy concern, "desire for what we may consider a more sensible result cannot justify a judicial rewrite [of the FMLA]" [quoting another case].

Ballard v. Chicago Park District (7th Cir., January 28, 2014).

Viva the FMLA! (with apologies to Elvis)

The decision in this case departs from rulings by two other courts of appeal. The 7th Circuit says those courts got it wrong because they ignored the relevant rule that "as long as the employee tends to a family member's basic medical, hygienic, or nutritional needs, that employee is caring for the family member, even if that care does not rise to the level of on-going medical treatment of the condition." That's an important distinction to keep in mind.

This case is a reminder not to make knee-jerk decisions. It's all too human for a manager to go ballistic after hearing that an employee took off to Las Vegas with a family member (albeit a dying one). But take a deep breath (OK, take several deep breaths), ferret out the facts, and then — and only then — decide whether to discipline the employee.

Finally, it appears that Beverly wasn't terminated immediately but was fired only after she ran afoul of the Chicago Park District's absence control policy (i.e., incurring a certain number of unapproved absences within a certain time results in termination). That brings up an important point: When you're disciplining or terminating an employee for absenteeism, make sure HR or a manager reviews the absences to determine if any of them were covered by the FMLA.

If an employee is terminated or disciplined for absenteeism and some of her absences were FMLA-covered, the employer will lose the case automatically. All that's left for the jury is to decide damages. No ifs, no ands, no buts.

The author can be reached at mmaslanka@constangy.com.


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