The FMLA and psychological support: courts care about 'care' (and employers should, too).

• Author: Bailey, Katherine Stallings
• Position: Family and Medical Leave Act of 1993

The Family and Medical Leave Act ("FMLA") recognizes an employee's right to take leave to care for a qualifying family member. In light of the Act's remedial nature, the intended scope of the care provision is broad, but its definitional details are sparse. As a result of the attendant interpretive discretion afforded to courts, the Seventh Circuit announced its rejection of the requirement--first articulated by the Ninth Circuit--that care provided during travel be related to continuing medical treatment. A facial analysis of the resulting circuit split fails to appreciate the fundamental difference between the Seventh and Ninth Circuits' considerations: the distinction between physical and psychological care. Whereas physical care is readily measurable, psychological care is less defined and, consequently, ripe to facilitate FMLA abuse. Efforts to combat this potential lead courts to impose judicially devised limitations on psychological care, but judicial discretion still infuses some uncertainty into proceedings. For employers, the best remedy lies in the FMLA's optional certification provision, which requires medical validation of an employee's need for leave. In requiring certification, employers should distinguish between physical and psychological care, maximize the FMLA's informational requirements, and implement complete and consistent request and approval procedures.

TABLE OF CONTENTS INTRODUCTION I. THE SOURCE: WHEN CARE CREATES CONFLICT A. The FMLA: A Remedial Recognition of Employee Rights B. Care While Away and the Reason for Travel: Does It Matter? II. THE SPLIT: WHAT IT MASKS, AND WHAT IT REVEALS A. Statutory Interpretation: Distracting from the Facts B. Opposition to Abuse: The Common Approach to FMLA Interpretation 1. Efforts to Constrain Psychological Care Provided During Nonmedical Travel 2. General Efforts to Constrain the Concept of Psychological Care III. THE SOLUTION: CERTIFICATION AND CONSISTENCY A. Deference to Doctors: The Problems Posed by Psychological Care B. Certification: The Affirmative Responsibility to Ask 1. Formal Distinction Between Physical and Psychological Care 2. Inclusion of the Informational Requirements Permitted by the FMLA 3. Complete and Consistent Request and Approval Procedures CONCLUSION INTRODUCTION

"What happens here, stays here." The official slogan of Las Vegas (1) proved false for Beverly Ballard, whose trip there caused her to lose her fulltime employment with the City of Chicago. (2) The twenty-five-year employee of the Chicago Park District accompanied her terminally ill mother on a charity-funded trip to Las Vegas. (3) Prior to their departure, she submitted a request for leave under the Family and Medical Leave Act ("FMLA"), which the Park District formally denied. (4) Despite Ballard's failure to receive approval, she still proceeded with the trip, (5) expecting that her leave would be retroactively authorized. (6)

As her mother's primary caregiver, Ballard administered the necessary medication and looked after her mother throughout the trip. (7) However, both primarily engaged in typical tourist activities: "[P]laying slots, shopping on the Strip, people-watching, and dining at restaurants." (8) At no point did Ballard or her mother intend to seek professional care during the trip--the purpose was purely recreational. (9) Shortly after Ballard's return, the Park District fired her for the unauthorized absences. (10) Ballard subsequently filed suit against the Park District, (11) alleging that it violated the FMLA by denying her request for

leave and then firing her. (12)

The FMLA permits employees to receive leave to care for a "spouse ... son, daughter, or parent" facing "a serious health condition." (13) Congress intended for the FMLA to provide a work-life balance for employees, (14) but it did not expressly define the scope of care or specific means protected. (15) Accordingly, judges retain discretion as to whether specific forms of care qualify for protection, and the attendant assessment is consequently fact intensive. (16)

The First and Ninth Circuits have cabined the FMLA's care provision: through a series of decisions from 1999 to 2011, they adopted the condition that any care-related travel must be tied to the ill family member's continuing medical treatment. (17) In Marchisheck v. San Mateo County, the Ninth Circuit reasoned that a mother's relocation of her son for non-treatment reasons did not constitute care, (18) and, in Tellis v. Alaska Airlines, Inc., it dismissed a husband's claims of care through automobile retrieval and phone calls as nonsensical. (19) In Tayag v. Lahey Clinic Hospital, Inc., the First Circuit invoked the Ninth Circuit's rationale and determined that a wife who accompanied her ill husband on a faith-based healing trip had not provided FMLA-protected care. (20)

Ballard's trip to Las Vegas, however, prompted conflict: the Seventh Circuit adopted a broader understanding of care, which it considered irreconcilable with that of the First and Ninth Circuits. (21) In Ballard v. Chicago Park District, the court read the FMLA to protect physical care not tied to the continuation of current medical treatment. (22) As a result, the basic medical care in question, provided during travel unrelated to treatment, qualified as "protected" under the FMLA. (23) The Seventh Circuit explicitly differentiated its decision from those of the First and Ninth Circuits, which both determined that care provided during travel needed to be tied to continuing medical treatment. (24)

Despite the Ballard court's recognition of a circuit split, (25) its decision may not be entirely at odds with Marchisheck and Tellis. While Ballard's analysis focused almost exclusively on physical care, (26) the courts in Marchisheck and Tellis were forced to consider what was primarily, if not entirely, psychological care. (27) This distinction is crucial-while physical care is readily measurable, psychological care is more difficult to assess. (28) Given shared concerns about abuse of the FMLA's provisions, the difference in perceptibility explains the stricter locational requirement first articulated by the Ninth Circuit with respect to psychological care. For the same reason, courts throughout the country impose judicially created limitations on psychological care, both with respect to nonmedical travel and general claims of care under the FMLA.

For employers and their advisors alike, there exists a clear response: make substantive use of the FMLA's optional certification provision. Through optional certifications, employers can require doctors to confirm the necessity of FMLA leave requests prior to approval. (29) With logic supporting judicial deference to medical professionals in an ambiguous area of assessment, (30) employers should use certification as an opportunity to solicit and record, to the fullest extent allowed, potential bases for leave. To avoid falling prey to unexpected outcomes during litigation, employers should preemptively take the time to ensure that their own certification documents distinguish between physical and psychological care, require the information permitted by the FMLA for "sufficient" certification, (31) and proactively ensure consistent compliance with application and approval procedures. The administrative work on the front end will mitigate the inherent unpredictability of any discretionary, fact-specific assessments during litigation.

Accordingly, this Note argues that employers should seize the opportunity to exercise the optional certification provision as described. Part I contends that attempts to interpret the FMLA's broad scope of care contributed to a circuit split less deep than it may initially appear. Part II argues that the split masks the material difference between physical and psychological care, and it maintains that judicially imposed limitations on psychological care--exercised across the nation-reflect a shared concern of potential FMLA abuse. Part III argues that a general judicial deference to medical assessments, while an administrable solution to concerns of abuse, may prove unpredictable for employers forced to litigate FMLA claims. Therefore, it advocates for employers to proactively use the FMLA's optional certification provision, coupled with consistent compliance procedures, to maximize control over the inherent risks of litigation.

1. THE SOURCE: WHEN CARE CREATES CONFLICT

   The judicial discretion afforded by the flexibility of the FMLA fosters apparent tension between circuits in interpreting the broadly defined scope of "care." In a large sense, the FMLA provides protection for employees struggling to both maintain employment and tend to immediate family needs. (32) However, with respect to the care provision, its lack of definitional boundaries (33) permits judges to make case-by-case assessments of what constitutes care, which causes friction when circuits perceive conflict between approaches. (34) In this vein, in Ballard, the Seventh Circuit interpreted its approach to care as divisive and the cause of a split with the First and Ninth Circuits. (35)

   This Part maintains that the FMLA's broad definition of care afforded the Ballard court the discretion to frame its analysis as conflicting with the First and Ninth Circuits' approach. Section I.A discusses the remedial nature of the FMLA, the contours of its provisions and regulations regarding care, and the attendant concerns regarding abuse. Section I.B describes the Ballard court's purported split from the First and Ninth Circuits' approach to the scope of care.

   1. The FMLA: A Remedial Recognition of Employee Rights

      The FMLA provides that, subject to potential certification requirements, an employee has an annual entitlement to twelve weeks of leave to "care for [a] spouse, or a son, daughter, or parent ... if such spouse, son, daughter, or parent has a serious health condition." (36) Passed in 1993, (37) the FMLA was...