The Supreme Court of the United States agrees to hear—“grants certiorari”—very few cases. Because of this, the maxim has developed that ““it’s a long, long way to certiorari,” a variation of the British music hall song, “It’s a Long Way to Tipperary.” One of the reasons the Supreme Court may agree to hear a case is when different circuit courts of appeals have ruled differently on the same legal issue.

Due to a recent decision by the Seventh Circuit, we now have a “split in the circuits” on whether absences are protected by the FMLA when they are to “care for” a covered family member but do not involve any medical treatment. Ballard v. Chicago Park District (7th Cir. January 28, 2014).

The road to certiorari in this case goes directly through Vegas. It all began with a mother-daughter trip from Chicago to Vegas for the mom’s “end-of-life” trip. The mom was terminally ill. The plaintiff-daughter’s employer terminated her for unauthorized absences related to the trip. The FMLA issue is whether the daughter’s absences were protected by the FMLA because she was “caring for” her mom in Vegas.

While in Vegas, the mother and daughter did Vegas-type activities—they played slots, shopped on the Strip, dined in restaurants. The daughter also helped her mom with her medication. The trip did not include any medical care, therapy or treatment for her mom’s medical condition.

The district court rejected the defendant’s argument that time off to “care for” is only protected when it is connected to the family member’s need for medical treatment. It also held that “where the care takes place has no bearing on whether the employee receives FMLA protections” (For our post on the district court decision, click here.) On appeal, the Seventh Circuit affirmed, rejecting the reasoning of two other circuit courts.

The Seventh Circuit “respectfully part[ed] ways” with the Ninth Circuit and First Circuit decisions which held that some participation in ongoing treatment is necessary to trigger the “caring for” protection under the FMLA. Parsing the words of the FMLA and the DOL’s FMLA regulations, the Court noted that the FMLA does not restrict care to a particular place and does not define “care.” The Court cited the DOL’s regs, which state that being “needed to care for” involves assisting the family member “who is unable to care for his or her own basic….needs.” The Seventh Circuit noted that neither the statute nor the regulations use the term “treatment” in their definition of “care.” Based on this, the Court concluded that “caring for” requires taking care of a covered relation’s “needs,” even if it does not include any medical treatment.

So set your GPS heading for certiorari via Vegas. And while another maxim holds that what happens in Vegas stays in Vegas, if the defendant seeks cert, what happened in Vegas will be scrutinized in D.C., a clear violation of that maxim.

And remember, in the meantime, when it comes to “caring for,” absent medical treatment, circuit matters.