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Employment Blog

Mom's Bucket List Request Leads to Lawsuit - Seventh Circuit Declares Daughter's Care of Dying Mother During Trip to Vegas is FMLA Protected

Authored by Ruder Ware Attorneys
Posted on February 3, 2014
Filed under Employment

Recently, the federal Court of Appeals for the Seventh Circuit (which covers Wisconsin), clarified that the FMLA applies when an employee requests leave so that she or he can provide physical and psychological care to a terminally ill parent while that parent is traveling away from home. In doing so, the Court disagreed with other federal courts that have considered the scope of FMLA leave to care for a family member with a serious health condition. The case is Ballard v. Chicago Park District (link here).

In Ballard, Beverly Ballard, a Chicago Park District employee, requested unpaid FMLA leave to assist her mother during a six-day trip to Las Vegas. Ballard's mom had earlier been diagnosed with end-stage congestive heart failure and received hospice care although Ballard acted as her mother's primary caregiver, preparing meals, administering insulin and other medications, giving baths and dressing her mother. Apparently, one of Ballard's mother's end-of-life goals was to take a family trip to Las Vegas - a trip made possible through a charitable foundation serving terminally ill adults. The Park District ultimately denied Ballard's leave request and several months later terminated her employment due to unauthorized absences accumulated during the trip.

Ballard filed suit under the FMLA. Ballard's employer asserted that Ballard's assistance to her mother did not qualify as leave to care for her mother, because the trip to Vegas was not related to a continuing course of medical treatment. At issue in the case was whether the FMLA's authorization of leave [i]n order to care for a family member with a serious health condition protected Ballards provision of caregiver assistance to her mom away from homeeven if not provided in connection with ongoing medical treatment. Significantly, the Court concluded that the FMLA's text does not restrict care to a particular place or geographic location, and includes physical care and pure psychological comfort and reassurance. The Court departed from other federal courts in concluding that the term care, as used in the FMLA, need not be connected to ongoing medical treatmentespecially because the definition of serious health condition explicitly states that active treatment is not a prerequisite. In other words, Ballard's leave to help her mom check an item off of her bucket list was FMLA protected.

In light of Ballard, employers located within the territorial reaches of the Seventh Circuit must be aware that, [t]he relevant rule says that, so long as the employee attends to a family members 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. Interestingly, Ballard's employer suggested that a contrary conclusion is justified because employees will help themselves to unpaid leave to take vacations, simply by bringing seriously ill family members along.  Personally, I'm not buying that argument (I don't think the Court was too persuaded either).