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Are Employees Taking Advantage of FMLA Leave to Take Family Vacations?

Added by Hawley Troxell in Articles & Publications, Employment Law on February 6, 2014

Are you concerned that your employees will help themselves to FMLA leave in order to take personal vacations by bringing a seriously ill family member on the trip? Apparently this was the concern of an employer in a recent case from the United States Seventh Circuit Court of Appeals.

An employee may qualify to take FMLA leave to care for a family member who has a serious health condition. In Ballard v. Chicago Park District, the issue was whether the employee qualified for FMLA leave in order to travel with her seriously ill mother on a family trip. The employee’s mother had been diagnosed with end-stage congestive heart failure and began receiving hospice support. The employee lived with her mother and acted as her primary caregiver. As part of the hospice support, the mother said that she always wanted to take a family trip to Las Vegas. A six-day Vegas trip was then set.

The employee requested unpaid leave so that she could accompany her mother to Las Vegas. The employer denied the request, but the employee still took the trip. While on the trip, the employee and her mother “participated in typical tourist activities,” and the employee also continued to serve as her mother’s caretaker. Months after the Vegas vacation, the employer fired the employee for unauthorized absences accumulated during the trip.

The employee filed suit under the FMLA. The trial court ruled that the employee qualified for FMLA leave while on the trip, and on appeal, the Seventh Circuit agreed. In addition to rejecting the employer’s argument that the employee did not qualify for FMLA leave while on the trip with her mother, the Seventh Circuit was also not persuaded by the employer’s concern that the “real reason [the employee] requested leave was in order to take a free pleasure trip, and not in order to care for her mother.” Thus, the employee could qualify for FMLA leave while caring for her seriously ill mother—whether at home or while on a trip with her mother.

It must be noted, however, that another court with these same facts may have determined that the employee did not qualify for FMLA leave for the Vegas vacation. In arriving at its opinion, the Seventh Circuit (which covers Illinois, Indiana, and Wisconsin) pointed out that its analysis and conclusion created a “circuit split” with the First Circuit (New England area) and the Ninth Circuit (which includes Idaho).

Therefore, an employer in Idaho may not be under the same FMLA obligation as was applied to the employer in the Seventh Circuit’s recent Ballard opinion. Nevertheless, now that there is a split of opinion among the circuits, employers facing similar situations will want to make sure that they verify the current status of the law before making the FMLA determination.

If you have any questions regarding the FMLA or other employment matters, please contact a member of our employment group or call 208.344.6000.