The Bucket List:  Fun Movie And Now FMLA Approved The Bucket List:  Fun Movie And Now FMLA Approved

The Bucket List: Fun Movie And Now FMLA Approved

The Family Medical Leave Act provides eligible employees with leave to care for a family member with a serious health condition.  No surprise with this statement of the law.  But did you know that “care for” means assisting a family member with achieving her “end-of-life” goals, i.e., fulfilling a personal bucket list?  Such was the 7th Circuit’s 2014 decision in Ballard v. Chicago Park District.  Consider the following. 
Beverly Ballard was discharged by the Chicago Park District (“CPD”) for excessive absenteeism.  The straw that broke the camel’s back was her 6 days of absence occasioned by a trip to Las Vegas accompanying her terminally ill mother, Sarah.  A well-intentioned hospice and social worker, aware of the mother’s “end-of-life” desire to take a family trip to Vegas, arranged for the funding of this excursion.  Beverly Ballard was living with her mother and acted as her caregiver when the trip arrangements were made.  During the family sojourn to Sin City, Beverly and Sarah “participated in typical tourist activities.”  According to the court, the exception was when their hotel caught fire and Beverly drove her mother to a hospital to find another source for her medicine which was in the hotel room. 
Beverly’s discharge from employment led her to file suit claiming that her FMLA rights had been violated because the CPD counted her 6 days in Vegas as unexcused absences.  The CPD argued in the district court and in the 7th Circuit that Beverly did not really “care for” her mother when in Las Vegas and thus the time off did not qualify for FMLA protection.  The CPD also reasoned that the trip was not related to any continuing course of medical treatment. 
The 7th Circuit made short work of the positions advanced by the CPD.  Adopting a literal approach, the 7th Circuit went to great lengths to underscore the statute’s exclusive approval of leave simply “[i]n order to care for” a family member with a serious health condition.  No mention is made of medical treatment at least in the context favored by the CPD.  The care may be physical or psychological.  And “care for” does not impose any geographical limitations on where that “care” is performed.  At home or on a destination vacation – the FMLA makes no distinction.
The 7th Circuit was similarly unimpressed with the argument that Beverly Ballard’s care for her mother had to be related to ongoing medical treatment.  Again, the court perused the statute and regulations and noted that the definition of “care” does not include “treatment.”  Moreover, the definition of “serious health condition” explicitly states that active treatment of that condition is not a prerequisite. 
Perhaps as a last ditch effort on appeal, the Park District attempted to make the point that employees like Beverly Ballard would now be encouraged to recruit seriously ill family members in order to take additional personal vacation days under the guise of family medical leave.  This “Hail Mary” effort was dismissed out of hand by the court with the observation that the employment dispute arises out of the limited circumstance of hospice and palliative care:  in essence, telling employers that they need not be so cynical as to imagine this kind of employee abuse of the FMLA’s leave provisions. 
The “take-away” is an obvious one:  For the purpose of family medical leave, caring for a relative with a serious health condition need not be confined to providing medical treatment or furtherance of some medical treatment plan.  And assisting that same person with the completion of his or her bucket list could very well constitute qualified leave.  In the alternative, consider this “take-away:” the court may underestimate the creativity (or whatever other term the reader may choose) of employees in the real workplace.  It is not a matter of if employees will abuse family medical leave, but rather when and how.  Beverly Ballard’s vacation kicks the “bucket” down the road just that much further.

For additional information, please contact Mark Ford or any member of Ice Miller's Labor and Employment Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.

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