February 2014

By: James B. Sherman, Esq & Phoebe A. Taurick, Esq.

The Seventh Circuit Court of Appeals has held that an employee’s trip to Las Vegas with her dying mother was protected under the Family and Medical Leave Act (FMLA). While the court may have had good intentions, this over-broad ruling could create unintended consequences for employers with opportunistic employees.

The employee in Ballard v. Chicago Park District was living with her mother at the time and serving as her mother’s primary caregiver. When a nonprofit organization offered to fund an end-of-life trip for the mother and the employee, the employee requested unpaid leave to accompany her mother to Las Vegas. Although her leave was denied, the employee nevertheless proceeded on the trip as planned, undertaking her regular caregiving duties as well as tourist activities (presumably gambling?). The underlying lawsuit was brought after the employee was terminated for unapproved absence.

The FMLA allows up to 12 weeks of unpaid leave “in 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.” The unique facts of this case centered on the question of whether “caring” for a family member extended to cover a trip that was perhaps both a vacation and a show of compassion for a terminally ill family member. In determining that the trip in this particular case was protected under the FMLA, the court noted that the statute does not specify where care must be given. As a result the court concluded that this trip to Las Vegas was protected FMLA leave.

There is an old saying in the legal field that “bad [or tough] facts make bad law.” This may be such a case. On the one hand it is harsh to think that an employee could be fired over taking time off work to treat a dying family member to a trip akin to a final request. On the other hand, a trip to “Sin City” might not garner the same kind of support as, say, taking a child to Disneyland. The problem the 7 ^th Circuit has created for other employers that are subject to the FMLA, is that its rationale is too broad. Under its ruling in Ballard, the location of where care is given to a covered family member is irrelevant. Two other Federal Courts of Appeal that have faced somewhat similar situations – the 1 ^st and 9 ^th Circuits – have held that a trip to care for a covered family member must involve some level of connection to ongoing treatment of the medical condition in order to fall under the protections of the FMLA .

Employers are now left to wonder whether they must grant FMLA leave to employees who wish to take a parent, spouse, or child with a serious health condition, simply on a fun vacation. Under the 7 ^th Circuit’s ruling in Ballard an employee could go away with a covered family member, anywhere, under the protection of the FMLA so long as they were caring for that family member during the trip. Imagine an employee taking a child with a serious health condition (incidentally, nothing in the FMLA or the court’s ruling would require that the condition be terminal or life threatening) on a 3-month cruise of the Mediterranean. Or how about three separate, one-month vacations spread throughout the year (each and every year if the child had a chronic condition that entitled the employee to FMLA every year). The majority of appellate courts to address this would require, at a minimum, that the trips were somehow medically related, whereas the 7 ^thCircuit would okay the trips so long as the parent rendered care during the otherwise non-medically related trips.

It seems that the 7 ^th Circuit in Ballard could have applied the law of the other circuits in ruling as it did. Surely there could have been some medical justification for a vacation to support the patient’s mental wellbeing. Instead, the Ballard Court opened up a “Pandora’s Box” of potential employee abuse and other problems for employers within its jurisdiction (i.e. those covered by the FMLA with employees in Illinois, Wisconsin and/or Indiana). Employers can only hope that this decision is appealed and accepted for review by the Supreme Court due to the split the 7 ^th Circuit has created with two other Circuit Courts.