We employ a very elderly lady, Agnes. In fact, she’s a great-grandmother. See has asked to take some time off under the Family and Medical Leave Act. See tells us that her daughter Beatrice is out of the picture, but that Agnes raised Beatrice’s daughter, Catherine, who now herself has a two-year-old daughter Dorothy. Catherine is having foot surgery and won’t be fully ambulatory for a few weeks, so Agnes wants to take time off to help care for Dorothy. She says Catherine can take care of herself, but chasing after a toddler will be too much for her. Agnes says this will really take a load off Catherine’s mind. I’m not so sure this fits under the FMLA. What do you think?
So A wants to care for C by looking after D because B can’t do it?
Let me first address one obvious point – yes, I made this scenario up. But this hypothetical touches upon some interesting quirks of the FMLA and highlights a recent case from the Seventh Circuit Court of Appeals that has the potential to greatly expand employees’ FMLA rights.
Some basic FMLA background is a good start for analyzing this question. The FMLA permits qualifying employees to take up to 12 weeks of unpaid leave each year to, among other things, care for that employee’s parent, spouse, or child suffering from a serious health condition. The FMLA authorizes leave to care for an employee’s adult child only if the adult child is suffering from a serious health condition and is incapable of self-care because of a mental or physical disability. There is nothing in the FMLA statute or regulations that entitles an employee to take leave to care for a grandchild, unless the grandparent is acting in loco parentis to the grandchild – in other words, if grandma is raising grandchild.
So let’s take a look at the hypothetical. A has asked for FMLA leave to “care” for granddaughter C by looking after great-granddaughter D. The first thing to note is that the FMLA does not permit leave to care for a grandchild, but does permit leave to care for a person for whom the employee is acting in loco parentis. Here, A raised C as C’s parent, so theoretically A could take leave to care for C. C, however, is not a child under the FMLA; she is an adult child. Leave to care for an adult child is permitted only if the adult child is incapable of self-care because of some disability. But A has stated that C is not incapable of self-care – she can care for herself, she just can’t take care of her daughter, D, by herself. So it looks like A is not entitled to FMLA leave to care for C. In order to avoid this rule, A seeks leave to care for two-year-old D, which is necessary given C’s brief convalescence. But again, the FMLA does not entitle an employee to take leave to care for a grandchild, much less a great-grandchild. Thus, it looks like A is out of luck, and the employer would be within its rights to deny the FMLA leave request.
But what if C was, in fact, incapable of self-care due to a disability, and A sought leave to help care for C, which care included looking after D – would that count? That’s very close to a scenario recently analyzed by the well-known Judge Frank Easterbrook on the Seventh Circuit Court of Appeals. Although Judge Easterbrook has the reputation for being a very tough judge (he has in the past characterized arguments as “goofy,” nutty,” “pettifoggery,” and “frivolous, doomed and sanctionable”), he seemed to go out of his way to indulge an argument in this case. The June 2014 decision, Gienapp v. Harbor Crest, involved Suzan Gienapp suing her employer Harbor Crest for firing her while she was on FMLA leave. Gienapp took leave to care for her daughter, who, by all accounts, was disabled and unable to care for herself. The daughter also had other caregivers, including physicians and her husband, so Gienapp cared for her daughter primarily by looking after the grandchildren, in part so that the husband could go to work. While Judge Easterbrook recognized that the FMLA did not permit leave to care exclusively for a grandchild, leave to provide a “combination of assistance to one’s daughter, plus care of grandchildren” was permitted. Judge Easterbrook probably could have limited his opinion to concluding that Gienapp did take leave to provide some care for her adult child, and because the FMLA does not specify how much care is required, Gienapp’s leave was permitted. In the section of his opinion most troubling for employers, however, he went on to focus on Gienapp’s provision of care for her grandchildren. Judge Easterbrook wrote:
Harbor Crest has never contended that Gienapp’s assistance to other members of the family could not have given her daughter a mental boost. A person who knows that her family is well looked-after has an important resource in trying to recover from a medical challenge.
Noting that FMLA “care” includes psychological as well as physical assistance to a covered family member, this holding seems to suggest that taking FMLA to care for another includes providing a “mental boost” to that person. Apparently looking after grandkids gives such a boost; it’s anyone’s guess what other actions could qualify. Judge Easterbrook seemed to acknowledge these potential arguments, stating, “Doubtless some forms of familial assistance are too tangential to hold out a prospect of psychological benefits to a covered relative, but Harbor Crest does not contend that Gienapp’s aid was too slight to qualify.” It seems inevitable the “mental boost” language will be used repeatedly in the future by employees seeking to expand their FMLA leave rights.
I have found in my practice that administering workplace leave is the most frustrating part of an HR representative’s or in-house employment attorney’s job. This decision only adds to the confusion about when leave should be granted, how much leave is permitted, and when leave becomes so long or so indefinite that the employer can terminate the employment. It’s still true that an employee is not entitled to FMLA leave to care for a grandchild who has a serious health condition, but even when the leave request is to care for someone actually covered by the statute (parent, spouse, child), employers would be wise to take an expansive approach to what it means to provide “care.”