Las Vegas, the flu and the Family Medical Leave Act

 Samuel Hernandez, The Daily Record Newswire

With spring break right around the corner and flu season in full swing, a look into protected leave under the Family Medical Leave Act (FMLA) is in order. Why? A recent decision by the Seventh Circuit Court of Appeals has caused a stir by expanding, at least in that circuit, what sort of activity qualifies under the FMLA as “caring for” a family member’s serious health condition.

The FMLA generally provides that an eligible employee is entitled to leave “in order to care for” a family member with a “serious health condition.” In Ballard v. Chicago Park District, an employee and her mother traveled to Las Vegas as part of the mother’s end-of-life goals, but not to seek medical treatment. The company argued that in order to be protected, the trip had to have been made in connection with ongoing medical treatment.

The court noted that where an employee provides for the family member’s basic medical, hygienic or nutritional needs, the location of where care is delivered is not important. Accordingly, the Seventh Circuit concluded that an employee’s travel to Las Vegas with her terminally ill mother could be protected leave because the FMLA’s provisions for “caring for” a family member are not limited to a particular geographic location.

The Seventh Circuit expressly parted ways with the First and Ninth Circuit courts on this issue. In Marchisheck v. San Mateo County, Tellis v. Alaska Airlines, and Tayag v. Lahey Clinic Hospital, the Ninth and First Circuit courts underscored that “caring for” a family member with a serious health condition requires some level of participation in ongoing treatment of the condition.

Moreover, the courts reasoned that travel unrelated to medical treatment does not fall within the boundaries of “caring for” a family member. For example, in Tayag, the First Circuit determined that an employee’s leave to accompany her husband on a spiritual healing trip to the Philippines was not protected because it was unrelated to medical treatment, even though she assisted her husband with medication and was present in case of his incapacitation. In its disagreement, the Seventh Circuit stated that “none of the cases explain why certain services provided to a family member at home should be considered ‘care,’ but those same services provided away from home should not be.”

The Seventh Circuit’s expansion of what qualifies as “caring for” a family member’s serious health condition creates confusion for employers who must determine how to treat an employee’s request for leave. Employers can still take comfort in the fact that the decision does not bind the Ninth Circuit, which includes Oregon, Washington and California. Employers, however, must be aware of the circuit split because it creates wiggle room for employee plaintiffs to raise arguments and claims that echo the Seventh Circuit’s reasoning.

Although requesting leave to accompany a terminally ill family member to Las Vegas is generally uncommon, requesting it to treat aches, pains and the flu is more likely. According to the Centers for Disease Control, each year 5 percent to 20 percent of the population contracts the flu, resulting in more than 200,000 hospitalizations. But are employees entitled to take protected leave for such relatively minor illnesses?

The Department of Labor tells us that, unless complications arise, leave for the common cold, the flu, earaches, upset stomach, minor ulcers or routine dental work is not protected. The exception is when the illness meets the definition of a serious health condition — an incapacity of more than three consecutive days that also involves qualifying treatment.

In a 1996 opinion letter, the DOL provided an example: “If an individual with the flu is incapacitated for more than three consecutive calendar days and receives continuing treatment, e.g., a visit to a health care provider followed by a regimen of care such as prescription drugs like antibiotics, the individual has a qualifying ‘serious health condition’ for purposes of FMLA.”

Courts have generally followed the DOL’s guidance. In King v. The Permanente Medical Group, a former employee claimed that she had been wrongfully terminated because she had taken sick leave to recuperate from the flu and severe dehydration. The court denied the former employee’s claim because she had failed to establish that her illness was a serious health condition. Specifically, she did not receive care from a doctor. Nor did she receive ongoing medical treatment, such as prescription medication.

With this somewhat gray line as to what may be protected leave under the FMLA, what should an employer do?

Unless clearly not protected by FMLA, employers should treat an initial request for leave as protected leave. Employers should then analyze the request and seek medical certification where necessary in order to determine if the leave meets the definition of a serious health condition. Before making a final determination, employers should be aware that state and local (including Portland and Seattle) sick leave laws may be more generous to the employee.


Samuel Hernandez is an attorney with Barran Liebman LLP. He provides compliance advice to employers and represents management in employment law litigation. Contact him at 503-276-2175 or at