Counting travel time as approved FMLA leave is fact-specific

Q An employee took a few days off to care for her ill mother. Due to flight delays, she’ll be returning to work one day later than expected. Will the last day missed be counted toward Family and Medical Leave Act (FMLA) leave?

Generally, travel time should be included as FMLA leave when it’s intertwined with the approved care associated with the approved leave. However, this analysis is fact-specific. For instance, in a federal case decided a few years back, the court determined an employer’s denial of leave for an employee who needed off the day before his daughter’s out-of-town medical procedure to take her to the care center could be considered interference with his protected leave. The reasoning in that case was that the travel time was a necessary part of obtaining the treatment his daughter needed and so intertwined with the need for leave that it should have been considered protected.

In other circumstances, there could very well be factors that lead to the opposite conclusion. In the fact pattern presented above, we simply don’t have enough facts to determine whether this employee should receive protected leave for this additional time away from work, but you should look critically into the facts before denying the employee leave as uncovered by the Act.