Recall our recent posts about an employee who took the day off to clean his mother’s flooded basement and argued his absence was protected under the FMLA because he was “caring for” her, and about an employee who took two days off to provide “comfort and support” to his mother after she attended a friend’s funeral because she was emotionally distraught and was having problems regulating her blood sugar. The court rejected both FMLA “caring for” claims because the plaintiffs were unable to connect their assistance to their mothers’ serious health conditions.

Add to the list of rejected FMLA “caring for” claims that of a plaintiff whose daughter was injured while on a family vacation in Honduras and was airlifted to Miami for surgery. The employee was granted FMLA from March 20 through May 5 to care for his daughter. On April 12, the employee returned home to Texas while his wife remained in Miami with the daughter.  The plaintiff said he returned home because his neighborhood association had complained about his untended yard, his house needed to be cleaned, and he needed to add padding to the sharp edges in the home to protect his daughter upon her return. He said he was in frequent telephone contact with his wife and daughter until their return to Texas on April 29. Between April 12 and May 5, the plaintiff neither reported to work nor told his employer that he had returned to Texas.

The Fifth Circuit affirmed summary judgment for the employer, holding that FMLA leave may be used “only where the employee is in physical proximity to the cared-for person,”  and that the plaintiff did not remain “in close and continuing proximity” with his daughter during his FMLA leave. Baham v. McLane Foodservice, Inc. 

In rejecting the plaintiff’s claim, the Court held that the plaintiff was not with his daughter between April 12 and April 29; that mowing the lawn, cleaning his house, and padding the furniture is not “caring” under the FMLA; and that frequent telephone contact does not meet the “caring for” requirement.

“Who cares” and who does not is going to be decided on a case by case basis. However, a growing number of cases suggest that “being there,” physically with the family member needing care, is a requirement for FMLA leave.