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Employee hits FMLA Jackpot


By Mary Leigh Pirtle

An employee hit the FMLA jackpot after a federal court denied her employer’s motion to deny her FMLA protection while she accompanied her dying mother on a vacation to Las Vegas.

The employee accompanied her dying mother on an end-of-life trip donated by a charitable organization that grants wishes to terminal patients.  She was terminated upon her return for taking unauthorized leave.  The employee filed suit against her employer for willfully and intentionally interfering with her rights under the FMLA, and her employer filed a motion for summary judgment, seeking to dismiss her claims.

The employee was the primary caretaker for her mother, preparing her meals, administering her medicine, operating a pump to remove fluids from her mother’s heart, bathing her, and providing her with transportation, comfort and support, among other responsibilities.  There was no dispute that the trip to Las Vegas was not necessary or part of the employee’s mother receiving ongoing treatment for her condition.  Rather, the employee admitted that the trip was solely for her mother’s enjoyment and that in addition to her primary caretaker duties, she spent time with her mother playing slots, shopping, people-watching and dining at restaurants. The employer argued that case law required the family member for whom the employee was caring to be seeking treatment in order for FMLA to cover the time spent at a remote destination, essentially arguing that FMLA should not cover time spent away from home on vacation.

FMLA does not require active treatment
The court rejected the argument that time off to “care for” a family member is only protected when it is connected to a family member receiving treatment, finding no such limitation in the law’s text.  The law requires only that the employee seek leave to “care for” someone with a serious health condition.  In fact, the court stated that under the FMLA, “caring for” specifically covers the care provided to those individuals with a terminal illness, like the employee’s mother, and that the very essence of a terminal illness presumes that there is no treatment left to be given for the condition.

“Care” may be anywhere
The employee provided “care for” her mother at her home, and provided the same “care for” her mother during the trip to Las Vegas.  The employee’s mother had a serious health condition and was unable to care for her own basic medical, hygienic, or nutritional needs or safety without the aid of her daughter.  The court stated that the needs of the employee’s mother did not change based on her new location.  Because the employee continued her caretaker responsibilities while on the trip to Las Vegas, namely, continuing to administer her mother’s medicine and operating a pump to remove fluids from her mother’s heart, bathing her, and providing comfort and support, the court held that the time off to care for her mother was protected.  In denying the employer’s motion for summary judgment, the court stated, “so long as the employee provides care to the family member, where the care takes place has no bearing on whether the employee receives FLMA protections.”


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