The Family and Medical Leave Act (FMLA) governs an employee’s right to take unpaid time off from work to care for a sick, injured, or disabled family member. It permits eligible employees to take up to 12 workweeks of leave per year for a qualified reason, one of which includes providing care for a spouse, child, or parent with a serious health condition. Employees can take unpaid leave to care for a family member with a serious health condition by providing assistance with basic medical, hygienic, and nutritional needs or psychological comfort and reassurance.
Yet, as employees continue to request FMLA leave to care for relatives in need of assistance, several federal courts have had to address one puzzling question: whether an employee may use FMLA leave time to care for a sick, injured, or disabled family member while on a vacation or short-term trip lasting several hours. The statute itself provides little clarity, and—perhaps unsurprisingly—the courts that have encountered this issue are split on how to resolve it.
In Tayag v. Lahey Clinic Hosp., Inc., 632 F.3d 788 (1st Cir. 2011), the First Circuit noted that the definition of “care” under FMLA does not include accompanying a sick family member on long trips unrelated to medical care or treatment. The district court below reasoned that when an employee travels with an ailing family member, the provision of care is merely an “incidental consequence” to the trip itself.
The Seventh Circuit, however, observed that the language of FMLA only restricts the provision of care to family members who have a serious health condition, not to a particular geographic location. Ballard v. Chicago Park Dist., 741 F.3d 838 (7th Cir. 2014). The court determined that the daily medical needs of individuals afflicted with a serious health condition do not change when they leave the home. By this logic, so long as the employee continues to provide care to a family member while on vacation, FMLA covers that leave time.
Meanwhile, the Sixth Circuit has yet to confront this issue. The only guidance within its jurisdiction comes from the Eastern District of Michigan, which adhered to the same “incidental consequence” rule as the First Circuit. Leakan v. Highland Companies, No. 96-75445.
In short, the law on this subject remains unsettled. To complicate matters more, the federal courts have not addressed how employees using intermittent leave for shorter, daytime trips may be subject to the same restrictions as those on longer trips and vacations. The fact that the Sixth Circuit has yet to confront any of these issues only further obscures them. Employers subject to the Sixth Circuit’s jurisdiction are thus left with the other courts’ guidance.
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