Leave in Las Vegas

An Illinois district court has ruled that an employee's trip to Las Vegas with her terminally ill mother qualified for FMLA leave. The key lesson for HR, experts say, is to determine the trip's chief purpose when confronted with an employee's FMLA request to care for a family member during a vacation.

Tuesday, December 11, 2012
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According to an Illinois district court judge, what an employee does in Vegas . . . may qualify as Family and Medical Leave Act leave.

An employer's motion for summary judgment was recently denied in the case of Ballard v. Chicago Park District, which found plaintiff Beverly Ballard claiming her former employer denied her FMLA rights by declining to approve a trip to Las Vegas with her terminally ill mother.

In early 2006, Sarah Ballard - Beverly's mother - was diagnosed with end-stage congestive heart failure. In December 2007, Sarah was granted a trip to Las Vegas by the Fairygodmother Foundation, a charitable organization that grants "wishes" to individuals with terminal illnesses. As her primary caregiver, Beverly was to accompany her mother on the excursion.

She claims to have approached supervisor Eric Fischer during a meeting break on Dec. 19, 2007, to request FMLA leave for the trip. In the suit, Ballard alleged she was told she was notifying Fischer too far in advance, and that he would get back to her. and Chicago Park District deny the conversation ever happened, and Fischer claimed that he didn't learn of Ballard's trip until he received a faxed leave request in January 2008. The Park District maintains the quality of the fax was so poor that Fischer initially thought it was a request for personal days and thus denied it, according to court records.

Ballard maintains she repeatedly tried to reach Fischer by phone after learning her request was denied, and, while she hadn't received formal approval, she "believed that her FMLA leave would be approved" based on conversations she had with Fischer's administrative assistant during this time. Thus, she left for Las Vegas with her mother on Jan. 21, 2008.

During her trip, Beverly Ballard acknowledges shopping with her mother, dining at restaurants and playing slots, while admitting there were "no plans for Sarah Ballard to seek professional care, therapy or treatment for her heart condition" during their Vegas stay.

Ballard, who returned to work on January 28, 2008, was fired in March of that year for her allegedly unauthorized absences, and subsequently filed a lawsuit under the FMLA.

Under the Illinois district court's rationale, the decision "departs from other precedent - which it acknowledges - in holding that the trip on which the caregiver accompanies the patient needn't be a trip which was itself either part of ongoing treatment or for the purpose of receiving treatment," says Ronald Meisburg, a Washington, D.C.-based partner in Proskauer's labor and employment law department.

"Thus, under this court's ruling, any trip a patient might choose to take would support FMLA leave for the caregiver to go along," he says, noting the decision may be overturned on appeal, or eventually become a question for Supreme Court resolution. In the meantime, however, the rationale of the court introduces a variable to FMLA leave requests that may pose more difficult questions for employers, says Meisburg.

"The boundaries of FMLA leave are subject to expansion, and even potential abuse," he says. "For example, suppose the caregiver understandably needed a vacation, but was the sole caregiver of a patient. Could the caregiver take the patient along on a vacation and claim FMLA leave? Or could a caregiver mask his or her own vacation by arranging a trip for the patient, and then going along as the caregiver on FMLA leave?"

The Ballard case turns previous court rulings pertaining to FMLA claims "on their collective head" and signals a need for employers and HR to approach FMLA leave requests from a new angle, adds Jeff Nowak, the Chicago-based co-chair of Franczek Radelet's labor and employment practice.

"To date, employers generally have been free to deny FMLA leave for out-of-town travel where treatment of the family member's serious health condition was not involved," he says. "In light of this decision, employers should carefully study the leave request and determine whether the employee actually will care for the family member during the duration of the leave."

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Companies and HR professionals would also be wise to obtain adequate medical certification that describes the family member's serious health condition and specifically outlines the "caring for" functions that the employee must provide the family member, says Nowak.

"Moreover," he continues, "where the certification is unclear or does not match the 'caring for' duties described by the employee at the time of the leave request, the employer should clarify the employee's need for leave, and follow up with the healthcare provider as appropriate and in compliance with the FMLA regulations."

The decision "strikes me as a situation where bad facts make bad law," says David Calzone, secretary, director and shareholder with Bingham Farms, Mich.-based labor and employment law firm Vercruysse Murray & Calzone.

 It's important to bear in mind, he notes, that "many of these leave-handling contentions were disputed by the employer, but on summary judgment, the court must accept the plaintiff's version of the facts as true."

 Still, the park district may have mishandled the employee's request by "sending conflicting signals to [Beverly Ballard], failing to follow up when an illegible leave request form was submitted, and by allegedly failing to respond promptly to the request for FMLA leave when it was purportedly requested," continues Calzone.

Ultimately, the overarching lesson for HR professionals is to ascertain the trip's primary purpose when presented with an employee's FMLA request to care for a family member during a vacation, he says.

 "Is it personal, or is there a medical reason for the trip? Will the family member be receiving medical treatment during the trip? Has a healthcare provider certified the trip is part of the treatment associated with the [family member's] serious health condition? Determine what care, if any, the employee will be providing the family member during the trip."

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