иконописКартиниIn Baham v. McLane Foodservice, Inc., No. 10-10944 (5th Cir. July 1, 2011), an employee’s daughter suffers an injury while on vacation. She is transported to the closest hospital in Florida. After spending some time with his daughter, the employee leaves Florida and returns to his home in Texas to take care of matters there. His wife remains behind in Florida to look after the daughter. The employer discovers that the employee has returned home to Texas but does not report to work. The employee does finally return to work after his leave has expired but when confronted with the need to complete his original FMLA paperwork, he leaves work early and gives his keys and employee identification card to a security guard.
The employee later brings an FMLA retaliation suit claiming now that he was terminated in retaliation for taking FMLA leave. The district court determines that he was never eligible for FMLA leave as he was not needed for the care of his daughter. His departure from the Florida hospital and return to Texas demonstrate this. The employee argues that part of the reason for returning to Texas was to prepare the home for his daughter’s arrival and for her medical condition (head trauma). District court remarked that “care” under the FMLA requires actual care in close and continuing proximity with the sick family member.
Fifth Circuit Court of Appeals agreed and determined that even frequent telephone contact between the employee and his daughter did not satisfy the physical proximity requirement of care giving.
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