Does the FMLA create a "right" for grandparents to take time off to help care for newborn grandchildren?
The question says it all. Does an employee have a legally-protected "right" or entitlement to take time off under FMLA (or other applicable law) to assist in caring for a newborn grandchild without fear of losing his or her job?
Thanks,
Tim Colling
www.TrustworthyCare.com
Good Answers (1)
David B
Labor & Employment Attorney . . .Of Counsel, Jackson Lewis LLP
Best Answers in: Personnel Policies (9), Employment and Labor Law (5), Contracts (2), Ethics (1)
Hi Tim,
The following comments are general in nature and do not constitute legal advice to be applied to a particular fact scenario. These general comments should not be relied upon in lieu of obtaining competent legal advice from a licensed attorney in the relevant jurisdiction.
GENERAL COMMENTS:
For the FMLA, I'll give you the "diaper" answer . . . it Depends. While techinically, the FMLA does not entitle grandparents to leave for the "birth" of grandchildren (only parents get that under 29 USC Sec. 2612(a)(1)(A) -- "[b]ecause of the birth of a son or daughter of the employee. . ."), if complications arise with the birthing parent or newborn such that the parent and/or newborn has a "serious health condition," the grandparent may be entitled to caregiving leave under 29 USC Sec. 2612(a)(1)(C). Being pregnant in and of itself is usually not considered a "serious health condition" unless the mother is "incapacitated" within the meaning of the FMLA by the pregnancy. See, e.g. Aubuchon v. Knauf Fiberglass, GMBH, 359 F.3d 950, 952 (7th Cir. 2004).
In regards to state law, you should consult an attorney licensed in your jurisdiction. Jackson Lewis has offices in CA and they are excellent attorneys. I'll be joining the Seattle office as "Of Counsel" in December.
Links:
Clarification added 10 months ago:
See also Cruz v. Publix Super Markets, Inc., 428 F.3d 1379 (11th Cir. 2005) (FMLA does not cover employee's request for time off to assist daughter during birth of grandchild).
Clarification added 10 months ago:
Please note that while the FMLA may not apply to require the granting of potected leave in the situation you described, it is beneficial for employers to provide more liberal leave than the law requires. Adopting FMLA+ leave policies provides a strategic litigation advantage in cases where FMLA retaliation, interference, and/or discrimination is alleged.
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John V
Associate Corporate Counsel at LandAmerica Financial Group, Inc.
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John V suggests this expert on this topic:
I would think that if the grandchildren in question are under the legal guardianship of the grandparents, that would be ok. In otherwords, the FMLA provides time off for the "primary caregivers" of the children.
However, there are situations in which the FMLA doesn't apply. The grandparents in question need to work for a company that has at least 50 employees within a 75 mile radius to be covered under the FMLA.
Also, each state has their own similar laws that cover this topic. A company I used to work for, Personnel Concepts, can give you more information.
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Bob G
Railroad Fuel & Service Operations
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In general, leave eligibility under the FMLA includes circumstances where the employee needs to care for a child, parent or spouse.
FMLA does not usually cover leave to care for a grandchild.
Leaves of absences in order to care for seriously ill grandchildren, siblings, grandparents, aunts, or uncles will most likely fall in accordance to the company''s leave policy.
However, there is the legal concept of "in loco parentis." In essence, this means that a grandparent could be considered a "parent" if it is determined that this individual played a parental role in the child''s life.
This is not to say that the grandparent simply visited the child frequently throughout the child''s life, but that they provided a more active and financial role in the child''s life.
For instance, was the grandparent the child''s legal guardian? Or did the grandparent financially support the child in his/her upbringing?
You should consult with the US Department of Labor, a labor attorney, or your State Department of Labor.