FMLA’s ‘Needed to Care for’ Standard Requires Proximity

Interesting case law, that is a must-read if your company is FMLA eligible!


October 6, 2011 – 3:12 pm | By William Hoffman

The Family and Medical Leave Act requires that employees taking unpaid time off to care for a relative must stay close to that person during most of that leave, the U.S. 5th Circuit Court of Appeals said in deciding Baham v. McLane Foodservice, Inc.

While an employee need not spend every waking moment in the presence of the cared-for person, the leave-taking employee should be in close proximity most of the time to qualify for job-protected leave under the FMLA’s “needed to care for” standard, the ruling emphasized. (Note: This case was featured in last post.)

Girard J. Baham, Jr., took 11 days’ vacation leave with his family. During the vacation, Baham’s daughter suffered a severe head injury and had to be airlifted to a hospital in Miami for emergency surgery. Baham informed his supervisor, Jose Restrepo, of the situation. Restrepo told him to take all the time he needed and forwarded him the necessary FMLA paperwork. Baham completed the documentation for about six weeks’ leave and faxed it to McLane’s benefits administrator.

About halfway through his FMLA leave, Baham left his wife and recovering daughter in Miami and returned to Texas. He later claimed this was in response to neighbors’ complaints about the unkempt condition of his yard, and that he needed to child-proof his home in preparation for his daughter’s return. But he did not inform Restrepo or McLane of his return to Texas.

Upon his scheduled return to work, Baham was informed that his FMLA paperwork was incomplete, and was asked to gather the required information. Later that day, Baham left his worksite, leaving his keys and identification card with a security guard. McLane interpreted this as job abandonment and terminated Baham. He sued; a district court granted summary judgment to McLane. Baham appealed.

‘Needed to Care for’

The federal district court found that Baham’s daughter had an FMLA-qualifying serious health condition (§825.113). The court then turned to whether Baham was “needed to care for” his daughter during his FMLA leave period.

Both the law and regulations state that FMLA leave is appropriate for the care of a relative when the leave-taking employee is “needed to care for” that person. Under 29 U.S.C. §2613(b)(4)(A), for example, the employee must produce medical certification to show he or she is “needed to care for” a son, daughter, spouse or parent with a serious health condition.

Under §825.100(a), the regulations state that leave is appropriate for, among other things, employees “needed to care for” a family member with a serious health condition. The 5th Circuit further noted that employees may be “needed to care for” not just the physical but also psychological needs of the afflicted family member (§825.116(a)).

However, because Baham was not with his daughter during the disputed two weeks, he was not caring for her, the appeals court found. The work he did while away –mowing the lawn and cleaning his house, in addition to preparing the house for his daughter’s return by padding the furniture, did not qualify as care under the FMLA.

Proximity is Key

Baham cited two district court cases to support his contention that being physically apart from his injured daughter did not disqualify him for leave. The 5th Circuit was not persuaded.

In Briones v. Genuine Parts Co., a district court found that employer violated an employee’s FMLA rights when it fired him for staying home with three healthy children for two days while his wife tended to a sick child in the hospital.

In Call v. Fresenius Med. Care Holdings, Inc., another court agreed that an employee’s need for a nap did not disqualify her from FMLA leave because “she did not have to be caring for [her sick child] the entire day in order to merit FMLA leave.”

But the appeals court said those two cases were not relevant, because neither involved the out-of-state absence of a caregiver for weeks, the appeals court said. Remaining in frequent phone contact with the child’s mother was not enough either to show he was caring for his daughter. The 5th Circuit affirmed the lower court’s ruling.