An employee may take leave under the FMLA to care for a child with a serious health condition, even a child 18 years of age or older who is incapable of self-care due to a disability. But an employee may not normally take FMLA leave to care for a grandchild. A recent decision by the Seventh Circuit Court of Appeals has opened the door for an employee to take leave to care for grandchildren as long as the employee also spends time caring for his or her child. Gienapp v. Harbor Crest and Myra Chattic (7th Cir. June 24, 2014).
The plaintiff took FMLA leave to care for her daughter, who was undergoing treatment for thyroid cancer. A month into the plaintiff’s leave, her employer filled her position and, when plaintiff, sought to return to work near the end of her 12 weeks of leave, her employer told her she no longer had a job.
One of the employer’s arguments responding to the FMLA lawsuit was that the plaintiff was not entitled to FMLA leave because she did not “care for” her daughter but, rather, cared for her daughter’s children “reducing the burden on those who were caring for” the daughter. Noting that the employer had conceded that the employee had cared for the daughter at least for some time, the court framed the issue as follows: “whether a combination of assistance to one’s daughter, plus care of grandchildren that could take a load off the daughter’s mind and feet, counts as ‘care’ under the [FMLA].”
“To this the answer must be yes,” said the court, noting that the “FMLA does not treat care of grandchildren as disqualifying, if the employee also cares for an eligible relative such as a daughter.” The court suggested that caring of the grandchildren may have given plaintiff “a mental boost” and that “[a] person who knows that her family is well looked-after has an important resource in trying to recover from a medical challenge.”
Given the court’s comment that “taking a load off the daughter’s mind and feet” by caring for the daughter’s children is “caring for” the daughter, it is unclear just how much time an employee must care for the adult child during this combination child/grandchild leave for it to qualify under the FMLA.