Can Watching Grandchildren Entitle Employee To FMLA Leave?

LR_elderly-child-holding-hands-rgb-largeAs 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.

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