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FMLA leave “to care for” – Why do we care?

February 4th, 2014  |  Joy Waltemath

By Joy P. Waltemath, J.D.

Late last month, the Seventh Circuit created a circuit split when it determined that an employee who accompanied her terminally ill mother on an end-of-life vacation to Las Vegas to care for her physical needs, as she did at home, was entitled to FMLA-qualifying leave “to care for a family member with a serious health condition” (Ballard v Chicago Park District). The court parted ways with the First and Ninth Circuits on whether leave “to care for” needed to be connected to “ongoing medical treatment” in order to be protected under the statute. A careful reading of the Act itself and its regulations, which never use the term “treatment” in their definition of care but speak in terms of basic medical, hygienic, and nutritional needs, did not convince the Seventh Circuit that it should read a “connected to treatment” requirement into the statute.

What does it mean “to care?” It was undisputed that the employee’s mother suffered from a serious health condition. Rather, the employer argued its employee did not “care for” her mother in Las Vegas, believing the FMLA limited the meaning of “care,” at least in the context of an away‐from‐home trip, only to those services provided in connection with ongoing medical treatment.

The statute. An eligible employee is entitled to leave “[i]n order to care for” a family member with a “serious health condition” 29 U.S.C. § 2612(a)(1)(C), and this statutory section addresses only care, not treatment (although other sections, which both parties agreed were not relevant here, do use the term treatment). The court questioned why the employer suggested that participation in ongoing treatment would be required when an employee provided away-from-home care but not when care was provided at home, especially because the FMLA’s text does not restrict care to a particular place or geographic location.

The regs. No regulations specifically interpret Sec. 2612(a)(1)(C). But the court turned to regulations interpreting what is required for a medical provider to certify that “the eligible employee is needed to care for” a family member “for purposes of leave under section 2612(a)(1)(C).” Those regs state that “needed to care for” encompasses both physical and psychological care, where, for example, “a 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, etc.” Care, as described by the regs, also includes providing psychological comfort and reassurance that would be “beneficial to a child, spouse or parent with a serious health condition who is receiving inpatient or home care.”

Where do we care? To the Seventh Circuit, the only suggestion that location could make a difference was a statement in the regulations that psychological care “includes providing psychological comfort and reassurance to [a family member] … who is receiving inpatient or home care.” But that example, first, only concerned psychological care and second, was not intended to be exclusive. “The examples of what constitutes physical care use no location‐specific language whatsoever,” concluded the court. Nor did the regulations use the term “treatment” in their definition of care; they talked instead about basic medical, hygienic, and nutritional needs, which do not change merely because a person is not undergoing active medical treatment. Plus the court was unwilling to read an ongoing active treatment requirement into the definition of “care” when the regulatory definition of “serious health condition” explicitly states that active treatment is not a prerequisite.

Why do we care? From the employer’s perspective, caregiving (wherever it takes place) has a substantial impact on business. According to the Family Caregiver’s Alliance website, issues like absenteeism, replacing employees who quit in order to provide care, and other caregiving-related concerns (partial absences, interruptions, and the like) can have serious financial consequences to employers, costing billions of dollars in replacing workers and  lost productivity from caregiving-related workplace interruptions, and hundreds of millions in absenteeism, including leaving work early or arriving late.

Yet, although lots of eligible employees do take FMLA leave (13 percent in the year this survey was taken), the Department of Labor’s 2012 FMLA survey reports that less than 10 percent of workplaces perceive negative effects from complying with the FMLA on “employee productivity, absenteeism, turnover, career advancement, and morale, as well as the business’s  profitability.” Regardless of which way these statistics sway you, profitability pressures, low staffing, and fear of family leave abuse are real issues for employers.

Why do we care? From the family’s perspective, however, caregiving is essential. Most older people with long-term care needs — 65 percent — rely exclusively on family and friends to provide assistance, the Family Caregivers’ Alliance notes. Women in particular provide the majority of informal caregiving, the value of which reportedly ranges from $148 billion to $188 billion annually. And caregiving costs working women: lost wages from reduced work hours; passing up a promotion, training or assignment; time out of the workforce; unpaid family leave; switching from full-time to part-time; or taking early retirement.

Why do we care? In the Seventh Circuit case, the court had to consider a caregiving employee’s “family vacation to Las Vegas,” where she and her mother “participated in typical tourist activities.” Perhaps a trip to Las Vegas doesn’t immediately strike you as FMLA-qualifying. On the other hand, this employee was her mother’s primary caregiver, cooking her mother’s meals, administering insulin and other medications, draining fluids from her heart, bathing her, dressing her, and preparing her for bed. She performed these same caregiving activities on the trip, which was arranged by a hospice social worker who had discussed end-of-life goals for the mother and arranged funding for the trip from a nonprofit that facilitated trips for terminally ill adults. Had the FMLA leave request come from a father who wished to accompany his terminally ill son on a trip to Disney World arranged by a similar nonprofit, would we find it so difficult to see this as entitled to FMLA protection?

Our friend Eric B. Meyer wrote a pithy blog post on the case, which gets right to the point: If your employee needs time off to care for a significant other with a serious health condition, get an FMLA medical certification to satisfy yourself that the leave is covered.

Otherwise, what does it matter where the employee cares for a loved one?