Posted on 02/06/2014 at 11:26 AM by Russell Samson
Beverly Ballard's mother Sarah was diagnosed in 2006 with end-stage congestive heart failure, and began receiving hospice support. Beverly lived with her mother in Chicago, and was Sarah's primary health care giver. Those duties apparently did not, however, require Beverly to take leave from regularly scheduled work. Sarah reportedly had always wanted to take a family trip to Las Vegas. With funding from the (former) Fairygodmother Foundation, a six-day trip was scheduled for January 2008. Beverly requested unpaid leave from her employer, the Chicago Park District, so that she could accompany her mother. Although the request was denied, Ballard and her mother traveled to Las Vegas as planned. They spent time together and participated in typical tourist activities. Beverly continued to serve as her mothers caretaker during the trip. The Chicago Park District terminated Beverlys employment for unauthorized absences, including those accumulated during the trip to Las Vegas. Beverly sued under the FMLA. In its January 28, 2014, opinion in Ballard v. Chicago Park District, the United States Court of Appeals for the Seventh Circuit looked initially at the language of the statute itself. 29 U.S.C. § 2612(a)(1)(C) gives eligible employees a right to twelve workweeks of leave [i]n 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. There was no question but that Beverlys mother (a parent) had a serious health condition. So the issue before it, in the mind of the Seventh Circuit, came down to what does the standard in order to care for mean or require in the context of the FMLA. Acknowledging that it was parting ways with decisions of the First and the Ninth Circuit Courts of Appeals, the Seventh Circuit stated it was reading and construing the statute and attendant regulations as written. It noted that the FMLA itself distinguishes between treatment and care. There is no requirement in the statute that the covered relative with a serious health condition be receiving treatment in order to need care. While care itself is not defined in the statute or in the regulations, 29 U.S.C. § 2613(b)(4)(A) talks about what may be required in a certification of a health care provider including that the health care provider certify that the eligible employee, is needed to care for the qualified person with a serious health condition. The Department of Labors regulations on this point are today found at 29 C.F.R. § 825.124. That regulation explains in part:
(a) The medical certification provision that an employee is needed to care for a family member or covered servicemember encompasses both physical and psychological care. It includes situations where, for example, because of a serious health condition, 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. The term also includes providing psychological comfort and reassurance which would be beneficial to a child, spouse or parent with a serious health condition who is receiving inpatient or home care. [Boldface emphasis added.]
The Seventh Circuit noted that while the DOLs regulation appears to require that for psychological care, the person either be an inpatient or be receiving home care (another undefined term does that require the person to be homebound under Medicare standards?), there is no mention of location whatsoever when dealing with physical care. It noted that the mothers medical, hygienic or nutritional needs would not change by geographic location. So if mom had been permanently living in Las Vegas, daughter Beverly would have been entitled to an FMLA leave to go to Vegas to care for her. The mother continued to have the same basic medical, hygienic, and nutritional needs while she was in Las Vegas, and Beverly continued to assist her with those needs during the trip. So, concluded the Seventh Circuit, Beverly was entitled to FMLA leave for the family trip to Las Vegas. While the Eighth Circuit Court of Appeals has not yet weighed in on this subject, Iowa employers will want to review carefully any FMLA request for time off work to enable the employee to go on a trip with a covered relative who has a serious health condition. It is suggested that, at a minimum, a Certification of Health Care Provider for Family Members Serious Health Condition be required. While that DOL form has four different questions asking the health care provider to describe the care needed, and why that care is medically necessary, only one asks about the patient being incapacitated. 29 U.S.C. § 2613(b)(4)(A) as written requires that the certification establish that the employee is needed to care for the family member. Is the DOL's form deficient in that it doesn't ask for information establishing the need?
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- Russ Samson
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