Does long-distance ‘phone care’ qualify for FMLA leave?

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? A new court ruling defines care as being in physical proximity to the relative. Cutting a lawn in a different time zone doesn’t cut it …

Case in Point: While Girard Baham was on vacation with his family, his daughter fell and suffered a head in­­jury. She was admitted to a Miami hos­­pital. Baham contacted his employer in Texas, which 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 from Miami to Texas alone to prepare the house for his daughter’s arrival. He didn’t alert anyone at the company about his return. 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 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 ID. 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 for those final two weeks. The law lets employees take FMLA leave for either physical or psychological care to an eligible family member. But, as this court ruled, “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.)

 3 lessons learned … without going to court

1. Draft a detailed FMLA policy. Include language that says caring for a sick or injured family member re­­quires some level of participation in the ongoing treatment 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.


Author: Mindy Chapman is an attorney and  president of Mindy Chapman & Associates LLC. She is a master trainer, keynote speaker and co-author of the book, Case Dismissed! Taking Your Harassment Prevention Training to Trial. Sign up to receive her blog postings at