FMLA Leave May Be Used, In Part, To Care For Grandchildren

by Steve Bogue

Bogue, A. Stevenson
(402) 341-3070

When an employee of Harbor Crest applied for FMLA leave, she indicated that she would be caring for her daughter who had cancer. However, when the employer found that she was also caring for her grandchildren and was not the primary caregiver for her daughter, it attacked her eligibility for FMLA leave. The Seventh Circuit Court of Appeals rejected the attack and found that the employee’s discharge was unlawful.

In Gienapp v. Harbor Crest, the employee did not fill out the expected time of return blank on the FMLA request form. Thinking that she would not return at the end of her leave, but before the end of her leave, her employer hired a replacement. When the employee returned at the end of her leave, she was refused reinstatement. Harbor Crest first defended its refusal to return the employee to work by stating that she had not given a proper notice of the leave. However, the Court pointed out that the employee simply did not have notice of when her daughter might recover, or conversely, die. The Court found that the employer could have requested the employee to inform it, on a regular basis, of the status of her leave, but did not do so. It also pointed out that the employer had not asked about her potential return time. Strike one.

When it lost that argument it switched to two other attacks. First, it stated that the regulations provide that FMLA leave is to take care of a spouse, son, daughter or parent of the employee. They then tried to argue that because the employee’s daughter was an adult and married she could not count as a “daughter” under the statute. In doing so, it ignored the provision of the law which stated that a child, for purposes of the FMLA, is one who is under 18 years of age or older and incapable of self-care. The Court pointed out that the employer could not rewrite the statute by its own wishful thinking and dismissed that argument. Strike two.

The final argument it presented was that the employee was not her daughter’s primary caregiver and, really, was providing care for her grandchildren. The Court pointed out that the employee need not be the primary caregiver and that even if the employee spent time taking care of the grandchildren, so as to take a load off her daughter’s mind, that would count as care under the FMLA. The Court pointed out that a person who knows that her family is well looked-after is an important resource in trying to recover from a medical challenge. It pointed out that the proposition that devoting any time to the care of grandchildren rather than a child would disqualify a person from FMLA leave “is just plain wrong.” Strike three!

The takeaway from the Gienapp case is rather straightforward: An employer cannot jump to conclusions with respect to an employee’s failure to provide information about a firm return date from a leave. If it wants such information, it can require the employee to make periodic reports on her status and a return date. On the other hand, it can and should ask the employee if it believes the employee has omitted important information with respect to their request for FMLA leave. That is especially true in a case like the one at hand, although the FMLA request form omitted information concerning the return date, the leave was approved.

The second part of the takeaway is that in matters involving severe family illness, employers should use common sense approaches to dealing with issues such as the proper definition of “care” under the FMLA. The Court here stated in no uncertain terms that such care could, in the appropriate situation, be indirect, even if it involved care given to individuals not protected under the FMLA. The statute provides that the employee has to provide care to a covered family member, without specifying the nature of that care. Under the circumstances of this case, and, perhaps due, at least in part, to the nature of the employer’s attacks, the Court broadened the rule regarding what care is permissible and protected under the FMLA.

Share Button