GOOD NEWS FOR VEGAS—BUT DON’T TELL EMPLOYERS IN OTHER STATES

Should an employee be entitled to a job protected leave of absence under the FMLA in order to fulfill her terminally ill mother’s lifelong dream of a family trip to Las Vegas?

If you work in Chicago the answer is YES! Actually if you live in Illinois, Indiana or Wisconsin this is the now the law according to the United States Court of Appeals for the Seventh Circuit in a case decided on January 28, 2014.

The case is based on the section of the FMLA that permits an employee to take leave to care for a family member who has a serious health condition.  The law is clear that the “care” encompasses both physical and psychological care.

It is not clear that employees in Nevada would have the same freedom to take a job protected leave to fulfill an ailing relative’s lifelong dream of visiting Wrigley Field.   The normally liberal Ninth Circuit Court of Appeals has been somewhat circumspect on this issue.

The Ninth Circuit ruled against two employees who wanted job protected FMLA leave to accompany sick family members on out of town trips.

In the first case an employee took time off to pack up and move her depressed fourteen-year-old son from California to the Philippines to live with relatives.  The boy had been beaten by several acquaintances.  The mother said that the purpose of the move was to keep the boy safe from further beatings.

In the second case the employee took a cross-country trip to retrieve the family vehicle during his wife’s late-stage pregnancy difficulties.  Although his wife did not accompany him on the trip the employee called her regularly on his cell phone from the road.  The employee claimed that having a working vehicle provided psychological reassurance to his wife and his phone calls provided moral support and comfort.

In a refreshing breath of rationality the normally liberal Ninth Circuit ruled against both employees.  The Court pointed to one part of the FMLA regulations, which explain that the care can encompass 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.”

In the depressed teen-age son case the Court observed that the boy was not being moved to the Philippines to receive superior or any medical or psychiatric treatment.  In fact there were no specific plans to seek medical attention for him and he did not even see a doctor for five months after arriving in the Philippines.  Oh, and there were no psychological services within a three hour drive of the rural area where he was taken to live.

In the pregnant wife case the Court held:

Instead of participating in his wife’s ongoing treatment by staying with her, he left her for almost four days. Tellis claims his trip provided psychological reassurance to his wife, but he did not travel to Atlanta to participate in his wife’s medical care. Having a working vehicle may have provided psychological reassurance; however, that was merely an indirect benefit of an otherwise unprotected activity — traveling away from the person needing care. Tellis also claims his phone calls provided moral support and comfort, but his phone calls during his trip did not constitute participation in ongoing treatment. Common sense suggests that the phone calls Tellis made do not fall within the scope of the FMLA’s “care for” requirement.

Of course the facts in the Chicago case were different.  The employee was indeed taking care of her mother at home and the mother was terminally ill and needed significant medical care.  The employee accompanied her mother on the trip and presumably provided the same daily care for her while in Vegas that she was providing at home. What would the Ninth Circuit do with those facts? My crystal ball is in the shop but it is fair bet that the result would be similar.

Bottom line: Out of town employers: keep ‘em coming—Vegas needs the business.  If you are an employer here in Las Vegas, (or an employer anywhere else who wants to protect the business from potential abuse of leave), take the following steps when an employee requests leave to care for a family member with a serious health condition:

•  Be sure that the employee has filed a timely and complete certificate of health care provider as part of the leave request
• Be sure that the certificate is completely filled out and actually says what the employee believes it says
• Don’t hesitate to use your rights under the regulations to request a second opinion or recertification in appropriate situations.

For more information on the FMLA check out this and this.