Dying for leave: how societal views on end-of-life care pushed Ballard to expand the meaning of care under the Family and Medical Leave Act.

• Author: Vaky, Katherine

1. Introduction

   The Seventh Circuit's recent decision in Ballard v. Chicago Park District (1) shook employers and employment law attorneys to their core, (2) forcing reevaluation of what it means to care for a family member with a serious medical condition under the Family and Medical Leave Act (FMLA). (3) Ballard, a former employee of the Chicago Park District, requested FMLA leave to take her terminally-ill mother on vacation to Las Vegas as part of her mother's end-of-life plan, constructed by her mother and her mother's hospice team. (4) The Seventh Circuit agreed with Ballard that her employer should have granted FMLA leave for the trip. (5) In fact, Ballard created a circuit split on the issue, (6) placing the Seventh Circuit at odds with the First and Ninth on the meaning of care in the context of traveling. (7) By holding that an employer improperly denied FMLA leave to an employee accompanying her dying mother on a Las Vegas vacation, (8) the Seventh Circuit stretched the FMLA's meaning of care when applied to a seriously ill family member. (9) Ballard expanded the meaning of care by finding aspects of end-of-life care acceptable as caregiving activities. (10) The unique facts of this case and the court's emphasis on the nature of the mother's terminal illness introduce the subtle notion that the meaning of care loosens when applied to a dying family member. This case creates a lower threshold that was likely not intended by Congress and will frustrate employers, but is very much in line with American values and societal norms regarding end-of-life care. (11)

   This Note analyzes the Seventh Circuit's interpretation of FMLA care in Ballard. Part II provides an overview of the FMLA, focusing on the family-member-care provision, and various judicial interpretations of this provision. Part III explains the facts and judicial rationale in Ballard. Then, Part IV analyzes societal and congressional views of end-of-life care. Finally, Part V of this Note explores the significance of the Ballard decision and the risk of employee abuse. While the FMLA does not distinguish or discriminate on its face between a seriously ill family member and a dying one, (12) this Note explores how the definition of care likely becomes more flexible if the employee requests FMLA leave to tend to a terminally ill family member. This flexibility will have a huge impact as the largest generation begins to depart while under the care of employed, younger family members. (13) While Congress likely did not intend the FMLA's meaning of care to be taken so far, (14) Ballard's expansion of the meaning of care is well in line with other legislative actions addressing elderly care and societal views that the dying deserve the best care, even beyond what medicine can provide. (15)

2. The Family and Medical Leave Act

   1. History and Purpose

      Congress enacted the FMLA in 1993 to help working Americans "balance the demands of the workplace with the needs of families." (16) Recognizing the need for federal intervention into employer practices, (17) the FMLA created the first set of federal statutes that required many employers to provide leave for employees to address family and medical needs outside the workplace. (18) In his appeal to the President to sign the FMLA, Senator Pell stated:

      We may not be able to prevent the tragedy of a child dying or becoming very sick, but certainly we can provide to that child the comfort of his or her family, and provide the family with the chance to help, to show love ... For the sake of the next generation, and for the sake of the sick children and elderly today who have no one at home to care for them, we must as a Nation decide that we will not make our workers choose between their loved ones and their jobs. (19) Since the United States remains one of the only post-industrial countries without a national family leave policy in place, Congress sought to devise a program that would meet the needs of working family members without disrupting the economy or overburdening employers. (20)

      The Legislature recognized that a growing number of women were entering the workforce. (21) By the time the FMLA was enacted, seventy-four percent of women ages twenty-five to forty-five had employment outside the home. (22) Furthermore, longer life spans and the aging baby-boomer generation increased many workers' caregiving duties. (23) Finding that women were more likely to face conflicts between caring for families and maintaining jobs outside the home, (24) Congress believed that the FMLA would create better job security, family stability, and even advance gender equality. (25) The FMLA would also ensure that working Americans would have healthcare when they needed it the most. (26) Even though leave under the FMLA would be unpaid, the employee would maintain health benefits. (27)

      The FMLA was also designed to promote employers' economic interests. (28) A study cited by Congress prior to passing the Act found that hiring and training cost an employer far more than extending family or medical leave to an existing employee. (29) In addition, the findings also demonstrated that quitting or losing jobs increases the unemployment rate and dependence on social welfare programs. (30)

      To strike the balance between work duties and family and medical obligations, the FMLA offers eligible employees (31) up to twelve weeks of leave for any of five reasons: (1) birth of the employee's child; (2) placement of an employee's child via adoption or foster care; (3) care for the employee's spouse, child, or parent if that individual suffers from a serious health condition; (4) impairment of employee's ability to perform job due to his or her own serious health condition; and (5) a spouse, child, or parent called to active duty. (32) If the employee is granted FMLA leave to care for a family member with a serious health condition, the employee also has the option to take leave on a reduced leave schedule or intermittently. (33) After the leave has concluded, the employee must be reinstated to the previous position or to an equivalent position with the same benefits. (34)

   2. Caring for a Family Member with a Serious Health Condition

      An eligible employee may take FMLA leave to care for a family member with a serious health condition. (35) However, certain restrictions limit how this leave can be used.

      1. Who Is a Family Member?

         The caregiving provision of the FMLA only applies to the employee's spouse, (36) son, daughter, (37) or parent. (38) A parent could include "a biological, adoptive, step or foster" parent or even one "who stood in loco parentis to the employee." (39)

      2. What Is a Serious Health Condition?

         The eligible employee may only take FMLA leave to care for his or her eligible family member if that family member suffers from a "serious health condition." (40) The FMLA gives a brief yet broad definition of a serious health condition by including any "illness, injury, impairmentb or physical or mental condition" involving either inpatient care or "continuing treatment by a health care provider." (41) Regulations by the Department of Labor (DOL) further define inpatient care and continuing treatment by health care providers. (42) This definition is applicable to situations in which the employee seeks FMLA leave for self-care and when the employee seeks leave to provide care to family members. (43)

         This one-sentence statutory definition creates a threshold test but does not distinguish in severity or lethalness. It is worth noting, however, that death is not considered a serious health condition. (44) Despite clarity and commentary from the DOL, (45) the actual meaning of a "serious health condition" in practice has often thwarted employers (46) and created a plethora of litigation. (47) However, in cases where it is clear to all parties involved that the family member is dying or terminally ill, it is a criterion rarely contested.

      3. What Is Care?

         Even if all the previously stated criteria have been met with respect to eligibility, (48) relationship, and serious health condition, the employee is only able to take FMLA leave if he or she will be providing care, (49) Since the FMLA is not intended to "cover every family emergency," the meaning of care is critical to understanding the parameters of the FMLA. (50) Unfortunately for both the courts and employers, "care" is not defined anywhere in the statute.

   3. What Does It Mean to Give Care?

      In the absence of a definition from Congress, the DOL has provided guidance on the meaning of care. (51) The DOL provides some direction on when an employee is "needed to care for a family member" under the FMLA. (52) DOL regulations specify that care incorporates both physical and psychological care. (53) The regulations provide an array of examples of care. Physical care, for example, is needed when "the family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor." (54) Psychological care could include "providing psychological comfort and reassurance which would be beneficial to a [family member] who is receiving inpatient or home care." (55) Courts have freely admitted that the threshold for psychological care is set quite low. (56) While the DOL offers many examples of what encompasses care, real-life situations leave courts guessing whether a case's facts closely relate to the regulation's examples. (57)

      In an attempt to provide clarity to employers, courts have identified different guidelines on what types of activities constitute care under the FMLA. Unfortunately, these guidelines are not congruent throughout every circuit, and some inconsistencies arise. (58) Three of these guiding rules provide insight into how various courts interpret care. First, many circuits, including the Seventh, find that visiting a family member who is suffering from a serious health condition does not...