To invoke FMLA protection for care of another, some geographic proximity is required by the employee.
In an unpublished opinion, the 5th U.S. Circuit Court of Appeals has held that an individual who requests FMLA leave to care for a seriously ill family member must have some role in providing the “care” required by the relative’s illness. According to the Fifth Circuit, a father who left his seriously injured daughter in the care of his wife while he readied the family’s home for their return was unable to support a claim for FMLA retaliation after he was fired from his job at the conclusion of his FMLA leave. Baham v. McLane Foodservice Inc., 5th Cir., No. 10-10944, unpub’d, 7/1/11.
Girard Baham was hired by McLane Foodservices, a Texas company, in 2006. During a family vacation in Honduras during March 2008, Baham’s daughter fell and suffered serious head trauma. She was airlifted to Miami, where she underwent emergency surgery. At that point, Baham called his supervisor and asked for FMLA leave related to his daughter’s injury. In response, the supervisor told Baham to “take all of the time he needed,” and forwarded FMLA leave forms to him for completion.
Baham completed and returned the forms, asking for leave from March 20 through May 5, 2008. He subsequently was notified that his paperwork was incomplete, because it did not include information indicating the expected duration of his daughter’s treatment. However, at no point during his leave did Baham provide the requested information.
On April 12, 2008, Baham returned to the family’s home in Texas, leaving his wife and daughter in Miami. Baham testified in his deposition that he returned to Texas to clean up the house and prepare for his daughter’s return by padding sharp edges to protect her from further injury, but stated that he was in constant telephone contact with his wife and daughter at that time. Baham’s wife and daughter returned to Texas on April 29, and Baham returned to work on May 5. Upon his return, Baham was informed that his FMLA paperwork still was incomplete, and again was asked to provide the required information. Later that day, Baham left the work premises, leaving his keys and ID with a security guard. The company interpreted his abrupt departure as a resignation, and sent a letter two days later, terminating Baham’s employment.
Baham then filed a lawsuit, claiming that he was fired in retaliation for requesting/taking FMLA leave. The lower court granted summary judgment to the employer, holding that Baham failed to establish that he was entitled to FMLA leave for the period in which he was in Texas and his injured daughter was in Florida. Because Baham could not prove that he was entitled to leave under the FMLA, he could not support a retaliation claim under that statute.
The Fifth Circuit upheld the lower court’s decision, stating that because Baham was not “taking care” of his daughter after he returned to Texas (those are the Fifth Circuit’s quotation marks), Baham was not entitled to FMLA leave and therefore could not set forth a cognizable claim of retaliation. The Court specifically held that in order to be entitled to FMLA leave, an employee must show that he is needed “to care for” a family member with a serious health condition, and cited the fact that various courts have affirmed the use of FMLA leave only where the employee is in physical proximity for the cared-for person. Here, it is undisputed that Baham was not with his daughter during the two weeks that he was in Texas, but was simply in regular telephone contact with her. The activities in which he was engaged – although undeniably preparation for his daughter’s return – were not “care” in the sense required by the FMLA, which involves some level of participation in the ongoing treatment of the family member’s medical condition.
Employers should not interpret this case to mean that the employee/caregiver must be the sole provider of care, or that the care must be medical in nature. One federal court specifically held that an employee who cared for his three healthy children while his spouse cared for a sick child supported his FMLA claim; another determined that an individual’s need for a nap did not disqualify her from FMLA leave from her evening job when she had spent the entire day caring for a seriously ill child. It is clear that FMLA cases are administratively complex and often factually dissimilar, and cannot be decided in general or blanket terms. The facts of the particular situation must be reviewed carefully before a decision is made that would adversely affect the employment of the person requesting or participating in FMLA leave.