Caring for grandchild qualifies for FMLA leave

When an employee has a baby or adopts a child, it’s easy to determine that he or she is eligible for FMLA leave. But it gets murkier when the baby who needs care isn’t the employee’s own child.

The FMLA regulations list eligible dependent children as those to whom the employee has “day-to-day responsibility to care for and financially support.” A biological or legal relationship is not necessary, and it’s entirely possible for an employee to voluntarily undertake a quasi-parental role and meet the FMLA definition. That can happen, for example, if the child in question is an employee’s stepchild or grandchild.

Recent case: Payroll manager Anthony Martin met the minimum hours and length-of-service requirements to be eligible for FMLA leave. He asked for time off when he learned that his daughter, a single mother who had just given birth, would be deployed with the military. He volunteered to care for the baby during her deployment.

Then she wasn’t called up, but instead went back to school. Martin went out on the FMLA leave his employer had approved. Then Martin’s employer declined to renew his contract.

He sued, alleging he had been terminated because he took FMLA leave.

His employer argued to the court that Martin wasn’t eligible for FMLA leave because he essentially used the leave to babysit. But the 11th Circuit Court of Appeals said a jury would have to decide whether Martin was eligible because the leave involved caring for his infant grandchild. (Martin v. Brevard County Public Schools, No. 07-11196, 11th Cir., 2008)

Final note: To avoid litigation costs, it may be best to err on the side of caution and allow an employee who claims he’s caring for and supporting a grandchild to take FMLA leave.