FMLA leave can include travel time

Needed travel

For guidance, perhaps we turn to simple logic. For example, if an employee needs to travel to obtain treatment/care, it would be logical for employers to consider the travel as part of the treatment/care and, therefore, be protected by the FMLA.

In other words, if the employee’s travel is directly related to the treatment or care, employers should likely count it as FMLA leave. If the health care provider can’t give the treatment unless the patient is physically present, the employee must travel to get it.

Compare this to situations where travel (or other activity) is only indirectly related to care. One court case did consider this. An employee missed work to clean his mother’s basement after a flood, as his mother had hepatitis, and the stagnant water was a breeding ground for the disease.

The court ruled that the time off for the cleaning was not FMLA-protected (Lane v. Pontiac Osteopathic Hospital, U.S. District Court, E.D. Michigan, Southern Division, 09-12634, 6/21/2010). The employee wasn’t even near his mother while he was cleaning, so he wasn’t directly caring for her.

Employees should be able to show that travel is (or was) required to get the treatment/care and that the employee remained near the family member. If employees cannot show this, employers could have a better argument denying the FMLA protections for the time spent traveling.

With the growth in telehealth, this issue may become less of an issue. Patients must receive many forms of treatment in person.

The regulations offer another bit of guidance, as FMLA leave for adoption includes traveling to another country to complete the adoption.

Therefore, the safest route in such situations would be for employers to include the travel time needed to obtain treatment as FMLA leave. If employers would like to deny the FMLA protections for travel time, they might end up being among the first to spend time and other resources to have this question specifically answered by the courts.

Key to remember: If the travel is so intertwined with the need to obtain treatment for an employee’s or a family member’s treatment, it would likely be FMLA leave.