Employee Provided “Care For” Terminally Ill Mother Within Meaning Of FMLA On Final Family Vacation: Seventh Circuit

The Family and Medical Leave Act (FMLA) applied when an employee requested leave to care for a terminally ill parent while that parent was traveling away from home, the Seventh Circuit U.S. Court of Appeals has ruled in Ballard v. Chicago Park District (No. 13-1445). The Seventh Circuit concluded that such an employee was seeking leave “to care for” a family member within the meaning of the FMLA. Here, the court observed that the employer failed to explain why certain services provided to a family member at home should be considered “care,” but those same services provided away from home should not be.

The plaintiff was a former Chicago Park District employee. Her mother had been diagnosed with end-stage congestive heart failure and began receiving hospice support. The employee lived with her mother and acted as her primary caregiver. The employee’s mother met with a social worker to discuss end-of-life goals. She expressed that she had always wanted to take a family trip to Las Vegas. Thereafter, the social worker was able to secure funding for a six-day trip through an organization that facilitated opportunities for terminally ill adults.

The employee requested unpaid leave from the park district so she could accompany her mother on the trip. Ultimately, the park district denied the request, although the employee maintained that she was not informed of the denial prior to her trip. The employee and her mother traveled to Las Vegas as planned and the employee served as her mother’s caregiver during the trip. Several months later, the park district terminated the employee for unauthorized absences accumulated during her trip. The employee filed suit under the FMLA. In response, the park district moved for summary judgment, arguing that the employee did not “care for” her mother in Las Vegas, because she was already providing care at home, and because the trip was unrelated to the mother’s continuing course of medical treatment. After the district court denied the motion, the park district moved for an interlocutory appeal.

Care away from home. The park district did not dispute that the employee’s mother suffered from a serious health condition but instead claimed that she did not “care for” her mother in Las Vegas. The employer would limit “care” only to services provided in connection with ongoing medical treatment. However, the Seventh Circuit found one problem with the employer’s argument was that the FMLA, 29 U.S.C. Sec. 2612(a)(1)(C), speaks in terms of “care,” not “treatment.” Moreover, the park district failed to explain why participation in ongoing treatment is required when the employee provides away-from-home care, but not when she provides at-home care.

Another problem with the park district’s argument was that the FMLA does not restrict care to a particular place or geographic location. The only limitation the FMLA places on care is that the family member must have a serious health condition. The Seventh Circuit was reluctant, without good reason, to read in another limitation that Congress had not provided.

Nonetheless, because the FMLA does not define “care,” the court turned to the Department of Labor’s regulations. First, the Seventh Circuit observed that there are no regulations specifically interpreting Sec. 2612(a)(1)(C). There are, however, regulations interpreting a closely related provision concerning health-care provider certification, 29 U.S.C. Sec. 2613(b)(4)(A). These regulations defined “care” expansively, to include “physical and psychological care”— again without any geographic limitation.

No ongoing treatment requirement. The mother’s basic medical, hygienic, and nutritional needs did not change while she was in Las Vegas; the employer continued to assist her mother with those needs during the trip. Thus, at the very least, the employee requested leave in order to provide physical care. That, in turn, was enough to satisfy Sec. 2612(a)(1)(C).

The Seventh Circuit rejected the employer’s contention that any care the employee provided to her mother in Las Vegas needed to be connected to ongoing medical treatment in order for her leave to be protected by the FMLA. Again, the court pointed out that neither the statute nor the regulations used the term “treatment” in their definition of care. The court concluded that it would be odd to read an ongoing treatment requirement into the definition of “care” when the definition of “serious health condition” explicitly states that active treatment is not a prerequisite,

Still, in support of its position, the park district relied on out-of-circuit case law construing Sec. 2612(a)(1)(C). A pair of Ninth Circuit cases, Tellis v Alaska Airlines, Inc and Marchisheck v San Mateo Cnty, held that “caring for a family member with a serious health condition ‘involves some level of participation in ongoing treatment of that condition.’” It also cited the First Circuit’s decision in Tayag v Lahey Clinic Hosp., Inc. However, the Seventh Circuit parted ways with the First and Ninth Circuits on this point. Rather, it noted that the relevant rule says 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. Thus, the judgment of the district court was affirmed.

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