Does FMLA Protect Grandfather Caring for His Grandchild?

“I needed time off to take care of my grandchild,” insisted payroll supervisor William Hamm. “I’m entitled to that leave under the FMLA.”

“As a grandfather, you don’t qualify for leave to take care of your daughter’s kid,” said Human Resources Director Jennifer Lyons. “Besides, you were fired for performance issues, not for taking leave.”

Was worker protected by FMLA?

Facts: The employer hired a payroll supervisor on a contractual basis subject to annual renewal. Initially, the worker’s performance was highly rated by the employer.
The employee’s daughter, a student and Army Reserve member, gave birth. The employee financially supported his daughter, a single parent, and the grandchild, and also cared for the grandchild while his daughter was away at school or Army Reserve obligations.

Concerned with his declining work performance, the employer gave the employee a performance improvement plan requiring him to “demonstrate significant progress” through a one-month period.

Meanwhile, the employee’s daughter was informed that her unit would be deployed overseas. The employee submitted a request for 12 weeks of FMLA leave to care for his grandchild, beginning on May 7. The request was approved through June 30, but not beyond the June 30 scheduled expiration of the employee’s annual contract.

The employee began leave, but his daughter was never deployed. The employee continued to care for his grandchild when his daughter was at school or away for Reserve weekend drills. On June 21, the employee received a letter from his supervisor stating that the employer decided not to renew his contract because he failed to complete his performance improvement plan.

The employee sued under the FMLA, alleging unlawful interference and retaliation for exercising his statutory right to leave. The U.S. District Court for the Middle District of Florida ruled for the employer, finding that the employee’s leave was not FMLA-protected. The employee appealed.

Award: The employee may pursue his FMLA interference and retaliation claims, the U.S. Court of Appeals for the Eleventh Circuit ruled Sept. 30 (Martin v. Brevard County Pub. Schs., 11th Cir., No. 07-11196, 9/30/08).

Discussion: The FMLA provides otherwise eligible employees with up to 12 weeks’ unpaid leave for the birth or adoption of a child or for situations in which an employee acts in loco parentis, the appeals court observed.

“We cannot agree with the district court that no reasonable jury could find that [the employee] stood in loco parentis (Latin: in the place of a parent, either parent of a minor, a guardian, or a person standing in loco parentis in order for a person to be considered in loco parentis, he or she must have intentionally assumed the rights and duties of a parent) to [the grandchild] while he was on FMLA leave,” the court said. “During that period, [the employee] provided [his grandchild and daughter] substantial financial support, including a home, food, and health insurance,” the court said. The worker “also played a significant role in caring for [the grandchild] even though [his daughter] was never deployed overseas,” it said. “We cannot say as a matter of law that [the employee] stood in loco parentis to [his grandchild]; nor can we say that he did not. [The employee] has presented sufficient evidence to create a genuine issue of material fact, and the district court erred in concluding otherwise.”

Assuming the employee’s leave was FMLA-covered, the appeals court said the employee raised a triable issue of unlawful interference with his statutory right to reinstatement. A jury could find either that the employer terminated the employee for performance issues unrelated to his leave or that the employee effectively was fired for taking leave that coincided with his probationary period, the court said. If the jury finds the latter, then the employee has shown unlawful interference, the appeals court said.

Pointers: Under the FMLA, family members are an employee’s:

• spouse, as defined under state law where the employee resides;

• children, including biological, adopted, foster, and stepchildren, legal wards, and children for whom the employee has day-to-day and financial responsibility (children must be under age 18 or over 18 and incapable of self-care because of a physical or mental disability); and

• parents, including biological mother and father and persons who had day-to-day and financial responsibility to care for the employee as a child.

Some states have family and medical leave laws that include other family members in addition to spouse, child, and parent. Employers should review their state laws for more information.

(This article was originally published in the November 4, 2008 issue of BNA, Inc. Bulletin to Management)

Final thoughts – when dealing with FMLA issues it is a good idea to ask lots of questions before telling an employee that leave under FMLA will not be allowed. Even though FMLA has been law for over 15 years it seems that new wrinkles develop out of court cases each and every year.

Generally, a grandparent would not qualify for leave under FMLA to care for a grandchild. In this case, the grandfather had assumed the duties of a parent by offering and taking responsibility for day to day financial (and other) responsibilities.

This is not a settled case. The case has been allowed to proceed to determine if the employer is guilty of interfering with the employees rights under FMLA.

We suggest that when these kinds of issues come up you should call your assigned HR Advisor. We may not have an immediate answer to every question, however, the HR Department at A Plus Benefits has the tools to find the right answer to seemingly obscure questions or situations.

Pass the task of answering these difficult questions to us so you can get back to business.

Randall Barker is the VP of Human Resources for A Plus Benefits, Inc.