Yes, a Trip to Las Vegas Can Be Considered a Covered FMLA Claim

By Eric B. Meyer

Your employee vacations in Las Vegas.

She plays the slots, walks the Strip, does some people watching, eats at nice restaurants. And she claims it’s all covered under Family and Medical Leave Act.

And, you know what? She may be right.

In January 2008, Ballard and her mother, who was terminally ill with cancer, took a trip to Las Vegas.

Was she “caring” for her mother in Vegas?

Beverly Ballard served as her mother Sarah’s primary caregiver. During the trip to Nevada, Ballard looked after her mother and administered her medication. The two ladies also spent time playing slots, shopping on the Strip, people-watching, and dining at restaurants. Ballard’s mother had no specific plans to seek medical treatment in Las Vegas and was never hospitalized or treated by a physician.

When Ballard returned to work, she was terminated for what her employer determined were non-FMLA-qualifying, unauthorized absences. Ballard then sued for violations of the FMLA.

Was Ballard’s leave covered under the FMLA?

An eligible employee may take FMLA leave to care for a parent with a serious health condition such as cancer. The question in this case was whether Ballard was “caring for” her mother in Las Vegas.

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With little guidance from the FMLA itself — the statute is silent on what it means to “care for” someone — the Court focused its analysis on the supporting regulations, noting that “what it means to ‘care’ for a family member does not depend on a particular location or on participation in medical treatment itself.” As further underscored in the U.S. Senate Report on the FMLA, medical treatment entails continuing supervision, not active treatment by, a health care provider.

Not all courts see this the same way

Thus, the court concluded that Ballard was caring for her mother during the Las Vegas trip:

Based on the statutory and regulatory text, there is no question that Sarah Ballard suffered from a covered “serious health condition,” and was unable to care for her own basic medical, hygienic, or nutritional needs or safety. There is also no question that the services Ballard provided her mother at home … constituted, at the very least, physical care within the meaning of the FMLA. It follows, then, that Ballard also “cared for” her mother during their trip to Las Vegas because her mother’s basic medical, hygienic, and nutritional needs did not change while she was there. Ballard did, in fact, continue to administer her mother’s medication and look after her mother in Las Vegas.”

Not all courts see eye to eye on this issue.

At least one federal court would have required that the mother seek medical treatment in Las Vegas from a doctor in order for Ballard’s leave to be covered under the FMLA. So, before making a similar FMLA call, consult an employment lawyer.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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1 Comment on “Yes, a Trip to Las Vegas Can Be Considered a Covered FMLA Claim

  1. This is baffling to me.  Essentially, this court has said you should convince your dying loved one to take a really nice vacation anytime so you can get off work.  Common sense tells us that caring for someone does not mean work the system for extra vacation time.  The way this judgement reads means that you could reasonably go on 4 or 5 extended vacations a year without your employer having any recourse.  Pathetic.

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