Author: Stephanie Scott, Associate Member, University of Cincinnati Law Review
The Family Medical Leave Act (FMLA) allows employees to take up to twelve weeks of unpaid leave to care for a family member with a serious health condition.[1] However, courts have struggled to interpret what “caring for” a family member must consist of under the FMLA. Particularly, limitations on the geographic locations in which an employee can “care for” a family member have created a split across circuits. Some circuits hold geographic location to be irrelevant, while others have held that the employee going on a trip or being in a different geographic location than the ill family member bars protection under the FMLA. Because the FMLA was drafted with the purpose of alleviating the pressures to choose between work and family, the FMLA should provide protection for employees despite their geographic location.
The Family Medical Leave Act
The FMLA was enacted in 1993 and gives eligible employees a right to twelve workweeks of leave “in order to care for the spouse, or a son, daughter, or parent of the employee, if such spouse, son, daughter, or parent has a serious health condition.”[2] The FMLA entitles employees to twelve workweeks of unpaid leave during a twelve month period to care for a family member.[3] In general, an eligible employee that takes qualified leave under the FMLA is entitled to the position of employment they held when the leave commenced.[4]
The purpose of the FMLA is to help employees balance work and family life while promoting the economic security of families.[5] Congress found that the number of single parent households and households with two working parents was increasing significantly, and that it was important for the development of children and family that parents be able to “participate in early childrearing and the care of family members who have serious health conditions.”[6] Because employers were failing to accommodate working parents, employees were often forced to choose between job security and family.[7] Congress enacted the FMLA to preserve family integrity by instituting the twelve-week floor for qualified care.
Bucket List Challenged in Ballard v. Chi. Park Dist.[8]
In Ballard, the parties disagreed on what qualified as “caring for” a family member under the FMLA.[9] In particular, the case asked whether an employee who requested leave to provide “physical and psychological care to a terminally ill parent while that parent was traveling away from home” was protected under the FMLA.[10]
Beverly Ballard was employed by Chicago Park District (CPD) when her mother, Sarah, was diagnosed with heart failure and began receiving hospice support.[11] Ballard lived with Sarah and acted as her primary caregiver.[12] Among other things, Ballard cooked Sarah’s meals, administered her medications, drained fluids from her heart, bathed and dressed her, and prepared her for bed.[13] Sarah’s “end-of-life goals” included taking a family trip to Las Vegas, and her social worker secured funding for this trip from a non-profit.[14] Ballard requested unpaid leave from CPD so she could accompany her mother to Las Vegas.[15]
CPD ultimately denied her request, but Ballard accompanied Sarah to Las Vegas as planned.[16] They did typical “tourist activities,” but Ballard continued to serve as Sarah’s caretaker during the trip.[17] CPD fired Ballard for unauthorized absences accumulated during her trip, and Ballard filed suit under the FMLA.[18] CPD argued that Ballard did not “care for” Sarah in Las Vegas because she was already providing at-home care and the trip was not related to a continuing course of medical treatment.[19] CPD argued that the FMLA should be read as limiting “care” only to services provided in connection with ongoing medical treatment.[20]
The court of appeals reasoned that the FMLA text did not restrict care to a particular place or geographic location (such as time off “to care at home for” a family member).[21] However, because there was ambiguity as to the definition, the court referenced the Department of Labor’s definition of “care for” a family member under the FMLA statute:[22]
An employee is ‘needed to care for’ a family member encompasses both physical and psychological care. It includes situations where … the family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor, etc.[23]
Sarah’s medical, hygienic, and nutritional needs did not change while she was in Las Vegas and Ballard continued to assist her with those needs during the trip.[24] Therefore, Ballard requested leave in order to provide physical care to her mother, which satisfied the FMLA.[25] If Ballard sought leave to care for her mother locally, or if Sarah lived in Las Vegas instead of with Ballard, her request would have clearly fallen within the scope of FMLA.[26] The court in Ballard did not see a cognizable difference between those scenarios and accompanying her mother on a trip, and accordingly ruled in Ballard’s favor.[27]
Car Retrieval Denied in Tellis v. Alaska Airlines, Inc.[28]
In Tellis, Charles Tellis was employed as a maintenance mechanic.[29] His wife was having difficulties with her pregnancy, so Tellis requested FMLA leave.[30] During his time off, Tellis’s family car broke down, so he flew to Atlanta to retrieve another family vehicle and drive it back to Seattle.[31] While he was gone, his sister-in-law stayed with his wife, and his wife gave birth.[32] Tellis called his wife regularly on his cell phone from the road.[33]
Tellis argued that he cared for his wife under the FMLA because his trip to retrieve the family car provided psychological reassurance to her and his phone calls provided moral support and psychological comfort.[34] The Ninth Circuit disagreed and held that providing care to a family member under the FMLA required some actual care, which did not occur here.[35] Caring for a family member with a serious health condition must involve some level of participation in ongoing treatment of that condition.[36] The court cited a number of circuits that had concluded that activities only constituted “caring for” when the employee has been in close and continuing proximity to the ill family member.[37]
Instead of participating in his wife’s ongoing treatment by staying with her, Tellis left for almost four days.[38] The court found that, while Tellis’s trip may have provided psychological reassurance, it was merely an indirect benefit of an otherwise unprotected activity.[39] Tellis’s claim that his phone calls provided moral support and comfort was similarly rejected; the court held that the calls did not constitute participation in ongoing treatment.[40] Therefore, Tellis’s cross-country trip to retrieve the family car (and phone calls made to his wife) did not constitute “caring for” his wife under the FMLA.[41]
Spiritual Trip Rejected in Tayag v. Lahey Clinic Hosp., Inc.[42]
Maria Tayag was terminated by her employer, Lahey Clinic Hospital (Lahey), while accompanying her husband, Rhomeo, on an approved seven-week leave.[43] Tayag claimed the trip was a spiritual healing trip.[44] Rhomeo suffered from a serious medical condition and Tayag had looked after him, transporting him to medical appointments, helping him with household activities, preparing his food, aiding him in moving around the house, providing medication, and giving psychological comfort.[45]
Rhomeo’s primary care physician provided a note for Tayag’s employer saying that his medical condition “significantly affected his functional capacity to do activities of his daily living” and advised that Tayag receive medical leave to accompany Rhomeo on any trips.[46] Tayag accompanied Rhomeo on a trip to the Philippines, and assisted him by administering medications, helping him walk, carrying his luggage, and being present in case his illness incapacitated him.[47] While they were there, they prayed, spoke with priests and other pilgrims at the Parish, and also visited churches, friends, and family.[48] Rhomeo received no conventional medical treatment while in the Philippines and saw no doctors or health care providers.[49]
Upon her termination at work, Tayag filed suit alleging a number of claims, including that her termination violated the FMLA.[50] The First Circuit disagreed, holding that Tayag’s trip was not protected under the statute because it was effectively a vacation.[51] Further, Rhomeo’s physician certificate did not provide a basis for a seven-week leave and disavowed the need for any leave.[52]
“Care for” Under the FMLA Should be Read Expansively and Without Regard to Geographic Location
Geographic location should not be taken into consideration under the FMLA. The inquiry should focus on the actives conducted to care for an ill family member and not where the care takes place. Courts can achieve this by considering a number of factors such as whether the sick family member was noticeably impacted by the employee missing work in order to care for them, if the employee could have performed the same tasks for the family member while continuing to work, and how comfortable the family member would be having a stranger perform the same tasks.
The FMLA should not be a convenient way to save an employee money or time by granting a reprieve from work to do unpleasant tasks; however, the FMLA should cover religious pilgrimages or the fulfillment of dying wishes. In Tellis, the care consisted of driving and making phone calls. Driving could be done by a complete stranger and phone calls could have been conducted while the husband was at work. There was little psychological (let alone physical) care provided to his pregnant wife from hundreds of miles away. Therefore, Tellis was rightfully denied protection under the FMLA. However, phone calls and driving require much less care or support than accompanying an ill family member on a spiritual trip. In Tayag, a wife helped her ill husband by “administering medications, helping him walk, carrying his luggage, and being present in case his illness incapacitated him.”[53] Tayag could not assist her husband at home or on his religious pilgrimage if she had been at work.
Similarly, in Ballard, the employee continued to serve as her mother’s caretaker during their trip and performed her usual responsibilities.[54] Like the employee in Tayag, Ballard was doing tasks for her mother that could not be done if she was at work, regardless of where they were geographically. Further, tasks such as administering medicine, bathing, and prepping for bed are tasks that a person would likely be more comfortable if done by a family member than a stranger. Therefore, the holding in Ballard was correct that this constituted “care” under the FMLA.
The policy reasons behind the FMLA dictate that the focus should be on the activities that consisted of “caring for” of an ill family member, not where the activities took place. Religious trips and dying wishes are particularly germane to that point. Being forced to decide between job security and accompanying a dying mother on her last wish to go to Las Vegas puts the kind of strain on family relationships that the FMLA was designed to alleviate. However, choosing between picking up a family car and going to work is not a pressure that Congress contemplated when drafting the FMLA, and should rightfully fall outside the scope of its protection.
Conclusion
When courts consider whether an employee was “caring for” an ill family member for purposes of FMLA coverage, geographic location should be irrelevant. The inquiry should instead focus on the actions an employee conducted while on FMLA leave. While geographic location may seem relevant when the employee and ill family member are in different locations, the real inquiry should fall on the actions themselves, regardless of where they took place.
[1] 29 USCS § 2612 (Lexis Nexis, current through PL 114-86, with a gap of 114-81, approved November 5, 2015)
[2] Id.
[3] Id.
[4] 29 USCS § 2614 (LexisNexis current through PL 114-86, with a gap of 114-81, approved November 5, 15)
[5] 29 USCS § 2601 (LexisNexis current through PL 114-86, with a gap of 114-81, approved November 5, 15)
[6] Id.
[7] Id.
[8] Ballard v. Chi. Park Dist., 741 F.3d 838 (7th Cir. Ill. 2014).
[9] Id. at 839.
[10] Id.
[11] Id.
[12] Id.
[13] Ballard ,741 F.3d at 839.
[14] Id. at 839.
[15] Id.
[16] Id. at 840.
[17] Id.
[18] Ballard ,741 F.3d at 840.
[19] Id.
[20] Id.
[21] Id.
[22] Id. at 841; See 29 U.S.C. § 2613(b)(4)(A)(describing what is required for a medical provider to certify that “the eligible employee is needed to care for” a family member “for purposes of leave under section 2612(a)(1)(C) of this title”)
[23] Ballard, 741 F.3d. at 841.
[24] Id.
[25] Id. at 842.
[26] Id. at 843.
[27] Ballard, 741 F.3d at 843.
[28] 414 F.3d 1045 (9th Cir. Wash. 2005)
[29] Id. at 1046.
[30] Id.
[31] Id.
[32] Id.
[33] Tellis, 414 F.3d at 1046.
[34] Id.
[35] Id. at 1047.
[36] Id.
[37] Id.
[38] Tellis, 414 F.3d at1048.
[39] Id.
[40] Id.
[41] Id.
[42] 632 F.3d 788 (1st Cir. Mass. 2011)
[43] Id. at 789.
[44] Id.
[45] Id.
[46] Tayag, 632 F.3d at 790.
[47] Id.
[48] Id.
[49] Id.
[50] Id.
[51] Tayag, 632 F.3d at 791.
[52] Id. at 793.
[53] Tayag, 632 F.3d at 790.
[54] Ballard, 741 F.3d at 839.
