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FMLA Leave Does Not Extend to Care for a Grandchild

    Client Alerts
  • November 02, 2007

An employee’s spouse, children, and parents are considered immediate family members for which companionship leave can be taken under the Family and Medical Leave Act (FMLA).  The Sixth Circuit recently addressed whether grandchildren should also fall into this category, entitling an employee to take FMLA leave.  In Novak v. Metrohealth Medical Center, an employee sought to have certain absences regarded as FMLA leave when she took time off from work to care for her adult child and her grandchild when her adult child suffered from postpartum depression.


The court initially noted that the FMLA permits an employee to take leave from work to care for an adult child (18 years of age or older) only if the child is suffering from a serious health condition and is incapable of self-care because of a mental or physical disability.  Here, the employee did not provide any evidence that her adult child was unable to care for herself.  Instead, the employee only contended that her adult child had difficulty caring for her newborn due to her depression.  The court declined to include grandchildren within the scope of immediate family and thus ruled that FMLA does not entitle an employee to take leave from work to care for a grandchild.


This case differs from a situation where the grandparent has custody of the grandchild, or otherwise acts in loco parentis.  In such cases, if the grandparent is considered to have primary and relatively permanent custody of the grandchild, FMLA regulations allow the grandparent to take leave for the serious health condition of the grandchild.