Can Watching Grandchildren Entitle Employee To FMLA Leave?

by Pullman & Comley - Labor, Employment and Employee Benefits Law
Contact

As all employers covered by the federal Family and Medical Leave Act (FMLA) are well aware, that Act requires them to provide up to 12 weeks of leave to employees providing care to covered family members with a serious health condition.  While a spouse, son, daughter, or parent is a covered family member under the FMLA, a grandchild it not.  Until recently, employers could reasonably conclude that the FMLA does not require them to provide leave to an employee seeking to provide care to grandchildren.  However, a June 24, 2014 decision by the Seventh Circuit Court of Appeals may have employers rethinking that conclusion, at least in circumstances where caring for the grandchildren assists a covered family member with a serious health condition.  In Gienapp v. Harbor Crest the Seventh Circuit concluded that an employee who cared for the children of her daughter while her daughter was receiving treatment for thyroid cancer was entitled to federal FMLA leave for periods spent providing such care.  Noting that “care” for which leave must be granted under the federal FMLA includes “psychological as well as physical assistance”, the Gienapp Court concluded that the “mental boost” the employee provided her daughter by watching her daughter’s children constituted “care” to a covered family member.

Perhaps recognizing that it was venturing into uncharted legal waters with its expansive interpretation of “care” under the FMLA, the Court was careful to limit its holding to situations where an employee requesting FMLA leave to watch grandchildren was also at least purporting to utilize such leave to provide direct physical assistance (such as assisting with basic medical, hygienic, or nutritional/safety needs or transporting her to a doctor) to a covered member with a serious health condition.  It appears relatively clear from the entire record that the employee in Gienapp was not in fact providing any such direct physical assistance to her daughter, but instead was using the entirety of her leave for the sole purpose of watching her grandchildren.  The Court nevertheless seized upon the employer’s failure to dispute the employee’s  assertion that she watched her grandchildren in the course of providing other unspecified care to her daughter to conclude to the contrary.  Thus, the Court refrained from directly holding that periods spent exclusively watching grandchildren to provide psychological comfort to a covered family member with a serious health condition constitute covered FMLA leave.  Instead, the Court carefully concluded that the employee’s use of some of her leave to watch her grandchildren did not disqualify those periods from coverage under FMLA.

Employer Takeaway

As Connecticut’s FMLA largely mirrors its federal counterpart, Connecticut employers can reasonably expect this decision to be utilized as precedent by Courts construing Connecticut’s Act.  However, the Gienapp decision does not dictate that employers start automatically granting FMLA leave to employees seeking to care for grandchildren, but instead suggests that employers should think twice before denying such requests as a matter of course.  And while the decision is clearly an outlier, employers should, for now, review requests for leave involving  grandchild care carefully, recognizing that such care may be entitled to coverage under the FMLA if it is accompanied by direct physical care to a covered family member with a serious medical condition.   While the Court’s rationale could arguably support a finding that employers are required to provide FMLA leave to employees for the sole purpose of watching the children of a family member with a serious health condition, such a position appears contrary to the great weight of existing precedent at the moment.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Pullman & Comley - Labor, Employment and Employee Benefits Law | Attorney Advertising

Written by:

Pullman & Comley - Labor, Employment and Employee Benefits Law
Contact
more
less

Pullman & Comley - Labor, Employment and Employee Benefits Law on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!