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Does ‘phone care’ qualify for FMLA leave?

by on
in Case In Point

When you grant an employee FMLA leave to care for a sick relative, do you wonder what type of “care” they must really be giving to qualify for time off under the FMLA? This new court ruling defines care as being in physical proximity to the relative. Cutting the lawn in a different time zone doesn’t cut it under the law …

Case in Point: When Girard Baham was on vacation with his family in Honduras, his daughter fell and sustained a head injury. She had to be airlifted to a hospital in Miami. Baham contacted his employer, McLane Foodservice in Texas, who told him to “take as much time as he needed.”

The company sent Baham the appropriate FMLA forms. He filled them out and requested six weeks of FMLA leave, but left blank the dates of his daughter’s treatment.

After four weeks, Baham returned to Texas alone to prepare the house for his daughter’s arrival. He didn’t alert anyone at the company about his return to Texas. Over the next two weeks, he cut the grass, cleaned the house and added padding to the sharp edges of the furniture for safety reasons. While in Texas, he stayed in phone contact with his wife and daughter who remained in Miami.

When his wife and daughter returned home to Texas, Baham returned to work on the date specified in his FMLA forms. But the company’s HR director asked him to provide more information for his incomplete FMLA paperwork.
Later that day, he left work and gave a security guard his keys and I.D. The employer interpreted this as his resignation and sent Baham a termination letter. Baham claims he didn’t resign and, in fact, was fired in retaliation for exercising his FMLA rights. He sued.

The result: The court sided with the company. Reason: Baham didn’t qualify for FMLA leave because he couldn’t show he was entitled to it throughout the entire six weeks in question.

The law allows employees to take FMLA leave for either physical or psychological care to an eligible family member. But employees must show they’re needed “to care for” the family member. And this court ruled that, “Courts have affirmed the use of FMLA leave only where the employee is in physical proximity to the cared-for person.” (Baham v. McLane Foodservice Inc., 5th Cir., 7/1/11)

3 Lessons Learned … Without Going to Court

1. Draft a detailed FMLA policy. Provide language to the effect that caring for a sick or injured family member requires some level of participation in the ongoing treatment of that family member and involves a particular activity that is conducted in close and continuing proximity to the ill family member.

2. Get the FMLA paperwork filled in completely. In this case, the court noted the employee’s FMLA application was incomplete and that left room for litigation.

3. Be consistent. Apply your FMLA policy consistently to all employees. Otherwise, you will not only end up with a retaliation claim but a discrimination lawsuit, too.

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