I’ll Be There For You . . . (If I Can Take Off Work): Courts Are Divided Over What “Caring For” Means Under the FMLA

The Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) is a federal act enacted in 1993, ostensibly to encourage a work-family balance.

Under the FMLA, eligible employees are entitled to take up to twelve weeks of unpaid, job-protected leave for various family and medical reasons. Acceptable reasons for leave under the FMLA include: a serious health condition of the employee themselves, the birth of a child and/or to care for a newborn, the adoption of a child, and to care for the employee’s child, spouse, or parent who has a serious health condition.

The issue of what precisely constitutes “caring” for a family member is interpreted differently by various courts and, thus, the subject of this post.

The Split

A Broad Definition of Care

 In 2014, the Seventh Circuit Court was challenged to determine what exactly qualifies as “caring” for a family member under the FMLA. Ballard v. Chi. Park Dist.  (7th Cir. 2014).

In Ballard, the plaintiff-appellee, Beverly Ballard provided daily care of her mother, who suffered from end-stage congestive heart failure.  She received a grant to take her mother on a vacation to Las Vegas, something her mother wanted to do before she died. Ballard requested leave from Park District, her employer, in order to travel with her mother. Her request was denied.  She was later terminated for the absences she accumulated during her trip.

During the trip, Ballard provided basic medical, hygienic, and nutritional needs for her mother. She also took her to the hospital to receive pain medicine and insulin when they suffered a loss of this medicine due a fire at their hotel.

Despite her employer’s protests that routine care was not covered by the FMLA, the court held that:

[A]s 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. Furthermore, none of the cases 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. Again, we see no basis for that distinction in either the statute or the regulations.

The Seventh Circuit’s holding, in essence, states the FMLA applies even when the employee accompanies the sick relative out of state—so long as the employee provides basic medical, nutritional, or hygienic care to the sick relative, the FMLA’s protections kick-in.

The Seventh circuit holding in Ballard directly contradicts the holdings of the First and Ninth Circuits, which determined that “care” for a family member had to be related to ongoing medical treatment.

A Strict Definition of Care

In the First Circuit, the court held that an employee who took leave to accompany her sick husband on a “healing pilgrimage” to the Philippines did not take a valid leave under the FMLA.  Tayag v. Lahey Clinic Hosp., Inc., (1st Cir. 2011).

Similarly, the Ninth Circuit held that an employee who flew cross-country to pick up a car and drive it back to his pregnant wife did not constitute valid leave under the FMLA. Because the care did not constitute the requisite  “level of participation in ongoing treatment of that condition,” the leave was invalid. Tellis v. Alaska Airlines, Inc., (9th Cir. 2005).

Looking Forward

This split is especially significant for employers, who should be aware of how the various circuits define “caring for” a family member. If the circuit uses a broad definition of care, in which the court examines the particular actions the employee took, then the employer opens themselves up to liability if they deny leave and take adverse action against an employee that then takes the leave anyway. For employees, the split is important to the extent that rights to unpaid leave under the FMLA depend on the federal circuit in which they work.

For further reading on the topic, see the University of Cincinnati Law Review or the employment law blog of Outten & Golden, LLP.