Seventh Circuit Creates Circuit Split on FMLA Protections

Practical Law Legal Update 1-556-1165 (Approx. 4 pages)

Seventh Circuit Creates Circuit Split on FMLA Protections

by Practical Law Labor & Employment

Background

The plaintiff requested FMLA leave from her employer to care for her terminally ill mother on a trip to Las Vegas. The employer later denied the plaintiff's request and terminated her for the unauthorized absences she accrued during the trip.

The plaintiff filed a lawsuit under the FMLA, and her employer moved for summary judgment. The employer claimed that the FMLA did not cover the plaintiff's leave because she did not "care for" her mother within the meaning of the statute since:

She was already providing care for her mother at home.
The trip was not related to a continuing course of medical treatment.

The district court denied summary judgment and held that, under the FMLA, it is irrelevant where the care occurs as long as the employee is providing care to the family member. The employer moved for an interlocutory appeal.

Outcome

The Seventh Circuit affirmed the district court, holding that the FMLA does not require the care provided to a family member to be part of an ongoing course of treatment when away from home, finding that:

The relevant rule says an employee is caring for the family member provided she attends to basic medical, hygienic or nutritional needs, even if it is not part of ongoing treatment.
There is no mention of "treatment" in the statute and its regulations' definition of "care."
The regulation's definition of "serious health condition" explicitly states that it does not require active or ongoing treatment (29 C.F.R. § 825.114(a)(2)(iv)).
The employer did not explain why the care must be part of ongoing treatment when away from home, but not at home.
The statutory text has no geographic limitation.
Regulations interpreting the closely related health care provider certification statute, 29 U.S.C. § 2613(b)(4)(A):
- broadly define "care;" and
- do not mention the location of the care, except to include psychological care for a family member receiving inpatient or home care.
The employee actually provided care to her mother on the trip when she:
- brought her mother to a hospital when a hotel fire made it impossible for her mother to reach her medicine; and
- continued to provide the care she provided to her mother at home.

The court disregarded the employer's policy concern that this ruling will lead to abuse of FMLA leave, noting that:

Employers may limit abuse by requiring that requests be certified by a health care professional.
This dispute arises in the context of a terminally ill family member.
The court must rely on the text of the FMLA, even if it does not lead to the most sensible result.

With this decision, the Seventh Circuit creates a circuit split, holding that the text of the FMLA and its regulations do not support:

The First Circuit's holding that the FMLA does not cover leave taken to travel with a terminally ill family member when the trip is unrelated to medical treatment.
The Ninth Circuit's requirement that "care" involve some participation in ongoing medical treatment.

Practical Implications

Employers granting FMLA leave should be aware of the emerging split about employees' rights and how the different circuits define "care" under the statute. This decision also highlights the Seventh Circuit's reliance on the text of the statute even when the result may cause policy concerns.

Seventh Circuit Creates Circuit Split on FMLA Protections | Practical Law