By Eric B. Meyer
Your employee vacations in Las Vegas.
She plays the slots, walks the Strip, does some people watching, eats at nice restaurants. And she claims it’s all covered under Family and Medical Leave Act.
And, you know what? She may be right.
In January 2008, Ballard and her mother, who was terminally ill with cancer, took a trip to Las Vegas.
Was she “caring” for her mother in Vegas?
Beverly Ballard served as her mother Sarah’s primary caregiver. During the trip to Nevada, Ballard looked after her mother and administered her medication. The two ladies also spent time playing slots, shopping on the Strip, people-watching, and dining at restaurants. Ballard’s mother had no specific plans to seek medical treatment in Las Vegas and was never hospitalized or treated by a physician.
When Ballard returned to work, she was terminated for what her employer determined were non-FMLA-qualifying, unauthorized absences. Ballard then sued for violations of the FMLA.
Was Ballard’s leave covered under the FMLA?
An eligible employee may take FMLA leave to care for a parent with a serious health condition such as cancer. The question in this case was whether Ballard was “caring for” her mother in Las Vegas.
With little guidance from the FMLA itself — the statute is silent on what it means to “care for” someone — the Court focused its analysis on the supporting regulations, noting that “what it means to ‘care’ for a family member does not depend on a particular location or on participation in medical treatment itself.” As further underscored in the U.S. Senate Report on the FMLA, medical treatment entails continuing supervision, not active treatment by, a health care provider.
Not all courts see this the same way
Thus, the court concluded that Ballard was caring for her mother during the Las Vegas trip:
Based on the statutory and regulatory text, there is no question that Sarah Ballard suffered from a covered “serious health condition,” and was unable to care for her own basic medical, hygienic, or nutritional needs or safety. There is also no question that the services Ballard provided her mother at home … constituted, at the very least, physical care within the meaning of the FMLA. It follows, then, that Ballard also “cared for” her mother during their trip to Las Vegas because her mother’s basic medical, hygienic, and nutritional needs did not change while she was there. Ballard did, in fact, continue to administer her mother’s medication and look after her mother in Las Vegas.”
Not all courts see eye to eye on this issue.
At least one federal court would have required that the mother seek medical treatment in Las Vegas from a doctor in order for Ballard’s leave to be covered under the FMLA. So, before making a similar FMLA call, consult an employment lawyer.
This was originally published on Eric B. Meyer’s blog, The Employer Handbook.