Sometimes an employee asks for FMLA leave to care for a family member, particularly a parent, but employee’s plans don’t involve physically assisting the family member with activities of daily living. Disputes may arise about whether the employee is entitled to FMLA leave when the plan is simply to provide comfort. Where assistance to the family member involves traveling, things can get contentious. Both employers and employees need to be clear about what “care” means under the FMLA. 

Caring for a Family Member: The Regulations

The FMLA regulations make clear that an employee need be doing nothing more than providing psychological and emotional support to a family member with the serious health condition to qualify for FMLA leave:

The medical certification provision that an employee is “needed to care for” a family member encompasses both physical and psychological care. It includes situations where, for example, because of a serious health condition, 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, etc. The term also includes providing psychological comfort and reassurance which would be beneficial to a child, spouse or parent with a serious health condition who is receiving inpatient or home care.

See here at subsection (a).

Thus, when an employee is sitting by a family member’s bedside, at home or in the hospital, and doing no more than providing the comfort of their presence, that qualifies as care for the purposes of FMLA leave. The family member’s condition doesn’t have to be terminal. Helping to make decisions about a family member’s medical care also satisfies the psychological care standard. See here and here, for example.

The regulations also make clear that the employee doesn’t have to be the full-time caregiver for a family member to qualify for FMLA leave. The employee may be needed on an now-and-again basis:

(b) The term also includes situations where the employee may be needed to fill in for others who are caring for the family member, or to make arrangements for changes in care, such as transfer to a nursing home . . . .

(c) An employee’s intermittent leave or a reduced leave schedule necessary to care for a family member includes not only a situation where the family member’s condition itself is intermittent, but also where the employee is only needed intermittently—such as where other care is normally available, or care responsibilities are shared with another member of the family or a third party.

See here at subsections (b) and (c).

Caring for a Family Member: A Court Case

What may be most surprising to employers is that the courts consider an employee to be providing psychological and comfort care when they accompany a family member with a serious health condition on a pleasure trip or vacation. In the federal Seventh Circuit Court of Appeals case Ballard v. Chicago Park Dist., the employer denied an employee FMLA leave to accompany her mother, who was in the end-stage of a disease, on a trip to Las Vegas. The trip’s costs were being borne by a nonprofit benefitting terminally-ill adults. The employee went anyway. Both back home and on the Las Vegas trip, the employee acted as her mother’s primary caregiver, bathing and dressing her, administering medication, and draining fluids from her heart. While in Las Vegas, the employee also accompanied her mother in the sort of tourist activities typically enjoyed by visitors to Las Vegas.

The Seventh Circuit concluded that the employee was entitled to FMLA leave to accompany her mother on this trip. It noted that the FMLA’s language does not restrict care to a particular place or geographic location. The court reasoned that if the employee had sought leave to care for her mother in Chicago, where they lived, her request would have fallen within the scope of the FMLA. Her request would have also qualified for FMLA leave if the employee’s mother had lived in Las Vegas instead of with the employee, and the employee had requested leave to care for her mother there. The court found no reason to treat the trip to Las Vegas any differently.

Conclusion

Employers shouldn’t jump to the conclusion that an employee’s use of FMLA leave to care for an immediate family member is a scam if it happens to learn that during the leave the employee will not be performing day-to-day physical care of the family member or will be accompanying the family member on a trip for pleasure. In assessing whether an employee needs leave to care for a family member with a serious health condition, the medical certification from the family member’s provider should be the employer’s guide. If the certification provides information showing the existence of a serious health condition and indicating that the employee is needed to provide care, the matter should rest there.