By: Anne- Marie Storey
A recent decision was issued by a federal court in Illinois on the “needed to care for” provision of the law. This decision allowed an employee to accompany her ill mother to Las Vegas for reasons unrelated to medical care or treatment.
The employee’s mother had an end-stage congestive heart failure condition with a limited life expectancy. The employee was her primary care giver, which included preparing meals, taking her to appointments, administering her medicine, and providing general daily care. There was no question that this activity was covered under the needed to care for provision of the FMLA. Then, the mother was granted a six-day trip to Las Vegas by a make-a-wish-type organization. The employee reported to her employer that she would need to accompany her mother on the trip to provide the same sort of care she was providing at home. The employer denied the request; the employee went and was terminated for unauthorized absences. While there, the employee provided general care to her mother but also spent time in recreational activities with her mother, including gaming, dining and shopping.
The employer’s reason for denying the leave was that there was no medically-related reason for the trip. The employee did not dispute this. The issue, then, was whether time off to care for a covered individual under the FMLA falls within the “needed to care for” provision when the care does not include medical treatment. The court noted that the FMLA only requires the employee care for a covered family member with a serious health condition; it does not require that that individual be receiving or seeking medical care at the time. It noted that the type of care the employee provided to her mother did not change, whether at home or in Las Vegas, even though they may have also (or simultaneously) spent time doing recreational activities.
Although this interpretation of the federal FMLA is broad, it is not entirely unexpected. In order to guard against potential abuses of this type of situation, an employer can at least be sure the medical certification is completed and that it supports the fact that the care provided by the employee is medically necessary.
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