Does the Family and Medical Leave Act Protect Grandparents Caring for Grandchildren?

Sometimes cases with interesting facts can lead courts to make decisions we might not necessarily expect at first glance, and the 7th Circuit Court of Appeals may have recently done just that. The primary issue in Gienapp v. Harbor Crest involved a box, on a form, left unfilled by the plaintiff. But the most noteworthy holding from the 7th Circuit decision has nothing at all to do with that empty box. Instead, it has to do with a grandparent’s rights under the Family and Medical Leave Act to care for their grandchildren when that child’s parent is ill.

Here at the Serrins Fisher blog, we’ve discussed the Family and Medical Leave Act (FMLA) many times. As working parents surely know, the FMLA is why we have federally legally mandated 12-week maternity and paternity leave. More specifically, no employee can be fired for taking up to a 12-week unpaid leave to care for a parent, spouse, or child with a serious health condition, for their own care from a serious health condition, to give birth, to care for a newborn child, or to adopt or take a child into foster care. An easy-to-follow primer on the FMLA can be found here.

So what happened in Gienapp? (The full case can be found here.) The plaintiff, Suzan Gienapp, was an employee of Harbor Crest, a “residential nursing care facility” in Illinois. She requested time off from her supervisor to care for her daughter, who was suffering from thyroid cancer. As per the FMLA, Ms. Gienapp was granted this leave: she was an eligible employee (some are not), and thyroid cancer was inarguably a “serious medical condition.” But Ms. Gienapp did not respond to a question on the FMLA form regarding the expected length of her leave. Based on this blank box and a doctor’s notation on the form describing Ms. Gienapp’s daughter’s recovery period as “uncertain,” Harbor Crest fired Ms. Gienapp. Ultimately, Ms. Gienapp returned to work two days before the end of her FMLA leave period, only to be told that she had been replaced.

On the unchecked box question, Ms. Gienapp was successful before the 7th Circuit, which found that Harbor Crest had violated the FMLA. But the more interesting takeaway from this case may have arisen only because of an unusual defense employed by Harbor Crest: Ms. Gienapp was not, in fact, caring for her daughter, but rather for her daughter’s children, and caring for grandchildren is not protected by the FMLA.

The court disposes of Harbor Crest’s argument rather harshly, as it should. First, to the argument Harbor Crest employs that Ms. Gienapp was not her daughter’s “primary” caregiver, the court states: “Employees are entitled to leave to provide ‘care’ for their children [as per the FMLA]; the word ‘primary’ is just not there, and we can’t add it[.]” The court also notes, appropriately, that caring for a grandchild is, in fact, a form of assistance for the child’s parent. The best quote:

[We] frame the issue as 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.

It’s important to note what this does – and does not – mean for grandparents. The FMLA indisputably does not apply to grandparents caring for sick grandchildren. Further, it is unclear from the decision whether at least minimal direct care must also be provided for the ill parent, in addition to the care provided to her children. But at the least, it should prove a welcome relief for grandparents who wish to assist their sick children in any way possible – including by spending some time with the grandkids.

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