The Family and Medical Leave Act allows qualified employees to take job-protected unpaid leave to care for a sick or injured spouse, child or parent. Over the years, federal courts have been asked to determine what constitutes such care. Does it apply to foreign travel with the family member? Can the employee providing care work at another job while on FMLA leave?

Last month, the Fifth Circuit Court of Appeals concluded that an employee in Texas was not providing care for his injured daughter who was in Florida at that time. In Baham v. McLane Foodservice, Inc., the plaintiff requested and was granted FMLA leave to care for his daughter who suffered serious head injuries, and was hospitalized in Miami. After five weeks, the plaintiff came back to Texas, but did not inform his employer that he had returned. The employer contacted him regarding issues with his FMLA paperwork, and learned that the plaintiff had returned to Texas. The employer considered him to have resigned when he did not return to work after leaving Florida.

The plaintiff sued, alleging FMLA interference and retaliation. He contended that he came back from Florida to prepare his house for his daughter's anticipated return home, and that this qualified for companionship leave under the FMLA. The Fifth Circuit disagreed, affirming dismissal of the case. The court concluded that the FMLA's companionship leave rights only apply when the employee is in close physical proximity to their family member. The employee must provide some kind of actual care to the family member, and housework does not qualify as such care.

These FMLA companion leave cases can be very fact specific, and employers should exercise caution before taking disciplinary action against an employee suspected of abusing or misrepresenting the need for leave. However, if the employer concludes that the employee is not providing care to the sick or injured family member, such evidence can be grounds for denying FMLA leave.