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FMLA Leave – 7th Circuit Rejects Participation in Ongoing Treatment Requirement

HR managers are frequently asked to decide whether employee requests for unpaid time off qualify as leave protected by the Family Medical Leave Act (“FMLA”). The FMLA gives eligible employees a right to take up to twelve weeks of unpaid leave in order to care for their spouse, son, daughter or parent if that person has a serious health condition. See 29 U.S.C. § 2612(a)(1)(C) (2013) (emphasis added). Some courts have held that “caring for a family member with a serious health condition involves some level of participation in ongoing treatment of that condition.” See Marchisheck v. San Mateo County, 199 F.3d 1068,1076 (9th Cir.1999). Under that interpretation, rehabilitative activities do not qualify as protected care giving under the FMLA unless they are directly related to treatment of the family member’s serious health condition. See Id. (holding that mother’s trip with son to Philippines after he was severely beaten did not qualify as care protected by the FMLA); see also Tayag v. Lahey Clinic Hosp. Inc., 632 F.3d 788 (1st Cir. 2011) (holding that wife’s seven week spiritual pilgrimage to Philippines with ailing husband did not qualify as care protected by the FMLA). But a recent Seventh Circuit Court of Appeals decision rejects the conclusions reached by prior case law and broadens the definition of the phrase “to care for.” See Ballard v. Chicago Park Dist., 741 F.3d 838 (7th Cir. 2014).

Beverly Ballard (“Mrs. Ballard”) was employed by the Chicago Park District (“the Park District”) and was the primary caretaker for Sarah, her elderly mother. Mrs. Ballard was responsible for cooking Sarah’s meals, administering her insulin, bathing her, dressing her and preparing her for bed. In April of 2006, Sarah was diagnosed with end-stage congestive heart failure. One year after her diagnosis, the Fairygodmother Foundation (a non-profit that facilitates end-of-life wishes for terminally ill adults) organized a six day trip to Las Vegas for Sarah. Mrs. Ballard requested six days of unpaid leave so that she could care for her mother while she was on the trip. The Park District ultimately denied Mrs. Ballard’s request and terminated her for unauthorized absences accumulated during the trip.

Mrs. Ballard subsequently filed a suit against the Park District alleging that its denial of her request for unpaid leave violated the FMLA. The Park District moved for summary judgment. It argued that the care provided during the trip was not protected by the FMLA because the trip itself was not directly related to a continuing course of medical treatment. The district court denied the Park District’s motion and the Seventh Circuit affirmed. “It would be odd to read an ongoing-treatment requirement into the definition of ‘care’ when the definition of ‘serious health condition’ explicitly states that active treatment is not a prerequisite. . . We respectfully part ways with the First and Ninth Circuits on this point.” Id. at 842.

Key Takeaway

  • Employers in Wisconsin, Illinois and Indiana should carefully monitor employee FMLA requests going forward. For the time being, the scope of conduct protected by the FMLA has expanded. In the Seventh Circuit, FMLA leave cannot be denied merely because the care will take place in a locale unrelated to the ongoing medical treatment of the employee’s ill relative.