7th Circuit Interprets “Caring for a Parent” to Include Last Wish Trip to Las Vegas

The Family and Medical Leave Act (“FMLA”) affords eligible employees the right to take twelve work weeks 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).  In its most recognizable application, this provision of the Act evokes situations in which an employee may require time off of work to provide physical care to a loved one such as driving that person to and from doctors’ appointments or administering his or her medications.

In the recent case of Ballard v. Chicago Park District, 2014 WL 294550 (7th Cir. Jan. 28, 2014), the Seventh Circuit examined just how far the “caring for a parent” provision of the FMLA may extend, and in this particular circumstance, the Court concluded — at least as far as a trip to Las Vegas.

Beverly Ballard worked for the Chicago Park District.  Her mother, Sarah, was terminally ill, diagnosed with end-stage congestive heart failure.  Beverly lived with her mother and acted as her primary caregiver.  For instance, Beverly cooked her mother’s meals, administered her insulin, drained fluids from her heart, and bathed and dressed her.

Sarah began receiving end-of-life hospice support.  As part of hospice, Sarah met with a social worker to discuss her last wishes and explained that she always wanted to take a family trip to Las Vegas.  The hospice social worker secured funding for a six-day trip to Las Vegas through a non-profit foundation that provides end-of-life opportunities for terminally ill adults so that Sarah could fulfill her last dying wish.  Beverly subsequently requested unpaid FMLA leave so that she could accompany her mother on this trip.  While in Las Vegas, Beverly and Sarah participated in tourist activities as Beverly continued to serve as her mother’s caregiver.  Several months after this trip, the Chicago Park District terminated Beverly, not approving her FMLA leave for the trip and counting those absences as unauthorized.

Beverly Ballard filed suit under the FMLA.  The Chicago Park District moved for summary judgment, arguing that Beverly did not “care for” her mother in Las Vegas so as to qualify for FMLA protection because she was already providing Sarah with care at home and because the trip was not related to a continuing course of medical treatment.

The Court held that Beverly’s trip to Las Vegas with her terminally ill mother did meet the definition of “caring for” so as to qualify for protection under the FMLA.  The Court reasoned that the plain language of the Act does not place geographic restrictions on the term “caring for.”  The Court observed that the only restriction the Act imposes on “care” is that the family member for whom the employee cares must have a “serious health condition,” which the Chicago Park District did not dispute with regard to Beverly’s mother.  The Court also relied on the Department of Labor Regulations to note that the Act defines “care” expansively to include both physical and psychological care.  The Court also observed that, even though Sarah was in Las Vegas, her basic medical, hygienic, and nutritional needs did not change, and Beverly continued to assist her with those needs during the trip.

The Court rejected the Chicago Park District’s argument of reading an “ongoing-treatment requirement” into the definition of “care.”  The Court emphasized that “so long as the employee attends to a family member’s basic medical, hygienic, or nutritional needs, that employee is caring for the family member, even if that care is not part of ongoing treatment of the condition.”  In rendering this conclusion, the Seventh Circuit departed with the First and Ninth Circuits, who have held that travel unrelated to medical treatment is not subject to the protections of the FMLA.

The Seventh Circuit noted that its reading of “care” does not open the door for FMLA abuses because the Ballard case occurred in the “hospice and palliative care context” and the FMLA still allows employers to require that any leave requests be certified by the family member’s health care provider.  29 U.S.C. § 2613.

It is also worth noting that although Ballard offers a fairly expansive interpretation of “care” under the FMLA, it by no means eradicates the other general requirements of eligibility under the Act.  So, before employees start packing their bags and before employers cry foul over the breadth of the Ballard decision, a closer look at the case suggests that opportunistic leave-taking will not be treated as protected activity.