March 20, 2014

Imagine that an employee comes to you and asks for time off from work under the Family and Medical Leave Act (FMLA) so that she can take her dying mother on one last trip to Las Vegas. You think that you're safe in declining that request, because the FMLA only allows eligible employees to take up to 12 weeks of unpaid leave "to care" for a parent or other immediate relative who has a serious health issue. You conclude that vacationing in Vegas doesn't constitute care.

If the employee sues you for an FMLA violation, then you will win that case before it goes to trial, right?

Not according to the federal appellate court in Chicago.

The U.S. Court of Appeals for the Seventh Circuit ruled in late January 2014 that FMLA leave to help an immediate relative with a serious health condition speaks in terms of care, not "treatment," and that nothing in the FMLA restricts where an employee must provide that care. In Ballard v. Chicago Park District, the court noted that the employee had approached her supervisor and requested FMLA leave in writing so that she could take her dying mother on vacation. Ballard claimed that the Park District authorized her request, so she went on vacation with her mother. But the Park District fired her months later, stating it had never authorized the absences accumulated during the trip.

Ballard sued the Park District, claiming that her trip to Las Vegas with her mother was covered by the FMLA because she cared for her dying mother during their time there. The Park District, however, asked the trial court to enter summary judgment in its favor, arguing that the FMLA did not cover her absences during the trip because Ballard's mother did not travel to Las Vegas for medical treatment, and that Ballard did not "care for" her mother on vacation.

The trial court rejected the Park District's argument, and the Park District appealed.

The appellate court's opinion noted that if Ballard had sought FMLA leave to care for her mother in Chicago, then such leave surely would have been covered. Similarly, the court noted, if Ballard's mother had lived in Las Vegas rather than with her daughter in Chicago, and Ballard had requested leave to care for her mother in Las Vegas, then the FMLA would have allowed Ballard to go to Las Vegas to care for her mother. The court therefore decided that as long as an eligible employee seeks FMLA leave to care for an immediate relative with a serious medical condition covered by the act, the employer must grant it — even if care is to be given on a vacation.

The court noted that the FMLA itself does not define care. But, the court said, the U.S. Department of Labor's regulations define the term to include helping an immediate relative with medical, hygienic and nutritional needs, driving them to doctor's appointments, and psychological comfort and reassurance. (Certainly, most of us could use some psychological comfort and reassurance after a day or two in Las Vegas.)

The appellate court therefore returned the case to the district court for a trial on the merits.

The appellate court noted that other appellate courts around the country have come to different conclusions on this issue. Eventually, the U.S. Supreme Court will have to decide the question.

In the meantime, employers in Illinois, Wisconsin and Indiana may want to err on the side of caution and grant employees FMLA leave to take one last vacation with an immediate relative with a serious health condition.

If you have questions or would like more information about the Family and Medical Leave Act, please contact Bob Neiman (, 312.521.2646) or contact your Much Shelist attorney.

This article contains material of general interest and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. Under applicable rules of professional conduct, this content may be regarded as attorney advertising.