Warning: It may have just gotten a lot easier for employees to abuse FMLA leave.
How would you handle this situation?
Say you’ve got an employee who cares for a terminally ill parent by preparing meals and administering medications outside of work hours. The parent can’t live without the employee’s assistance.
Now let’s say that parent decides to take a long-distance vacation, and the employee requests FMLA leave to travel with, and provide care for, the person who brought her into the world. The vacation is purely for pleasure. The parent is not traveling to seek medical treatment of any kind while away.
Would you grant the employee’s FMLA leave request?
Probably. But if you don’t, and the employee provides the proper certification, you better lawyer up.
Employer sued for FMLA interference
This is exactly what Chicago Park District had to do when it fired employee, Beverly Ballard, for unauthorized absences after she missed work to accompany her terminally ill mother on a six-day trip to Las Vegas.
Background: Ballard was the primary caregiver for her mother, who was suffering from congestive heart failure. Ballard prepared her mother’s meals, administered meds, bathed her, provided her with transportation and so on.
The mother was offered a “make-a-wish” trip to Las Vegas, courtesy of a local charity. Ballard then requested FMLA leave from the park district to accompany her mother. Ballard made no bones about the fact that this was strictly a trip for pleasure and that her mother was not traveling to seek medical treatment.
Ballard’s FMLA request was denied, and she was fired when she left for Vegas anyway.
She then sued, claiming FMLA interference.
Court sides with caretaker
A U.S. district court judge sided with Ballard.
The FMLA law entitles employees to take leave to care for a parent who is suffering from a chronic medical condition, as long as the need for the employee’s leave is medically necessary.
And in this case, the judge ruled it didn’t matter where Ballard provided the medically necessary care for her leave to be FMLA-eligible, as long as she was providing it.
The potential for problems
While most of you would’ve probably let Ballard go on the trip if you were her employer, you can see the dilemma this causes. If this is the way courts feel, what’s to stop an employee from being able to take time off under the guise of FMLA leave for vacation if he or she takes an ill family member with them?
Presumably, all the employee would need is a certification from a doctor saying the employee needs to accompany the ill family member on the trip to provide medical care. And all the employee would need to tell the doctor to get said certification is that the trip is for the ill family member.
It’s a tricky situation, one HR and benefits pros will need to keep their eyes on. If more cases like this pop up, the DOL may have to provide some guidance on the issue.
For now though, the best thing you can do is hold employees’ feet to the fire when it comes to FMLA certification. Make sure they receive — and fill out — the proper paperwork. And if you suspect any funny business, you have the right to a second, and possible third, opinion.