On January 28, 2014, the US Court of Appeals for the Seventh Circuit decided Ballard v. Chicago Park District, holding that the plaintiff's trip with her terminally ill mother qualified as protected leave under the Family and Medical Leave Act of 1993 (FMLA) (No. 13-1445, (7th Cir. Jan. 28, 2014)). In doing so, the Seventh Circuit created a split with the US Courts of Appeals for the First and Ninth Circuits on what it means to "care for" a family member with a serious health condition.

Practical Law reached out to Alicia Sienne Voltmer of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., for her thoughts on why the Ballard decision is important and what employers should do in light of the decision.

In Ballard, the Seventh Circuit engaged in a plain-language interpretation of the statute and the regulations to reach what appears to be a results-based decision, creating a split with the First and Ninth Circuits.

The plaintiff, Beverly Ballard, took leave to accompany her terminally ill mother on an end-of-life family trip to Las Vegas. The Chicago Park District terminated her employment for unauthorized absences incurred because of the trip. Ballard sued, claiming that the trip was protected leave under the FMLA. The FMLA provides eligible employees with up to 12 weeks of leave to care for the employee's spouse, son, daughter or parent when the family member has a serious health condition (see Practice Note, Family and Medical Leave Act (FMLA) Basics).

There was no question that the mother's illness was a serious health condition. The focus of the parties' dispute was what qualifies as "caring for" a family member for purposes of protected FMLA leave. Although the defendant claimed that caring for a family member away from home includes only services provided as part of ongoing medical treatment, the Seventh Circuit found no such limitation in the plain language of the statutory text and regulations, which broadly define the concept in relation to, for example, intermittent leave and certifications. In addition, the FMLA does not distinguish between whether or not the care is provided at home or in any geographic region, so it would be incongruous to require care to be part of medical treatment when away from home but not while at home.

In its ruling in Ballard, the Seventh Circuit splits from both the First and Ninth Circuits, both of which found that the care must be related to ongoing medical treatment (see Tellis v. Alaska Airlines, Inc., 414 F.3d 1045, 1047 (9th Cir. 2005), Marchisheck v. San Manteo Cnty., 199 F.3d 1068, 1076 (9th Cir. 1999) and Tayag v. Lahey Clinic Hosp., Inc., 632 F.3d 788 (1st Cir. 2011)). In doing so, the Seventh Circuit determined that the plain language of the statute requires only that the employee attend to the family member's basic medical, hygienic or nutritional needs, even if the care is not part of ongoing treatment for the health condition.

For more information about the Seventh Circuit's decision in this case, see Legal Update, Seventh Circuit Creates Circuit Split on FMLA Protections.

For more information about leave law generally, see Employee Leave Toolkit.

The Ballard decision underscores two important facts. First, the DOL's 2009 amendments to the FMLA regulations did not clarify several ambiguities in the statutory text. Second, courts have broad discretion to broadly or narrowly interpret the statute and the regulations depending on the circumstances of the case. This ambiguity and textual jurisprudence may result in increased litigation on the application of the law to specific situations.

The Seventh Circuit's split from the other circuits that have considered the scope of what qualifies as "care" under the FMLA creates an issue that may be ripe for US Supreme Court review.

Following the Ballard decision, and in the event there is any doubt about the nature of an employee's request for leave to care for a covered family member with a serious health condition, an employer should not hesitate to request a medical certification.

Employers in the First, Seventh and Ninth Circuits should follow the controlling precedents in those jurisdictions. Employers in jurisdictions that do not have precedent should make a considered and well documented evaluation based on what the medical certification reveals about the health condition and the care necessary during the requested leave.