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Care for Granddaughter Covered under FMLA in Some Circumstances

    Client Alerts
  • October 10, 2008

Under the Family and Medical Leave Act, parents can take job-protected leave for the birth of a child.  Employers often face requests for FMLA leave from grandparents wanting to take time away from work to assist with a new grandchild.  While such requests are usually outside the scope of the FMLA, a new Eleventh Circuit Court of Appeals decision shows that in some cases, the grandparent will be entitled to take FMLA leave.

In Martin v. Brevard Co. Public Schools, the plaintiff was a school district employee whose unmarried daughter was activated in the Army Reserves soon after giving birth.  The daughter and child lived with the plaintiff who provided primary financial support to both.  He requested FMLA leave to care for the child when his daughter was deployed.  The leave request was approved, but the daughter was never actually called to active duty.  When the school district learned of this fact, it terminated the leave.  The plaintiff refused to return to work and sued for interference with FMLA rights when his contract was not renewed.

The district court dismissed the claim, concluding that the grandfather was not entitled to FMLA leave because he did not stand in loco parentis with respect to the child.  The FMLA allows non-parents to take leave in some circumstances where they are the actual caregiver to the child.  In this circumstance, the school district argued that the mother was the primary caregiver.

The Eleventh Circuit disagreed, reversing the grant of summary judgment.  The court relied upon Department of Labor rules that define in loco parentis as “day-to-day responsibility to care for and financially support a child.”  In this case, the grandfather financially supported the child, and provided substantial care when the mother was activated for weekend Reservist duties, and at other times.  The Eleventh Circuit determined that a jury should decide whether this degree of care meets the in loco parentis test.

If followed by other federal appellate courts, this case could greatly expand the FMLA’s definition of eligibility for birth leave.  In many situations, grandparents provide substantial financial and/or daily care for an infant, especially in situations where the mother lives at home.  Based upon this decision, employers risk facing FMLA claims if they deny grandparents’ leave requests without carefully investigating the eligibility issue.