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Top FMLA Lawyer Reply: Can I Use FMLA To Care For My Grandkids?

On Behalf of | Jul 24, 2014 | Family Medical Leave Claims, Wrongful Termination |

Best Ohio Family Medical Leave Act Attorney Answer: Can my job challenge how I use my leave under the FMLA? What kind of care do I have to provide a sick son or daughter to get FMLA leave? How do I get FMLA leave? What is the best way to find the top FMLA retaliation attorney in Ohio?

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The federal Family Medical Leave Act (“FMLA”) requires your employer (if it employs more than 50 people) to give you up to 12 weeks of leave to care for covered family members that have a serious health condition. So what family members do you get to take leave under the FMLA to care for? Per the FMLA, spouses, children, and parents are covered if they have a serious health problem. What about grandchildren? Unfortunately, employees cannot take leave to care for grandchildren with serious health issues. Seems wrong, but the statute simply does not provide for it.

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However, a recent case out of the Seventh Circuit Court of Appeals has given us a new twist. In Gienapp v. Harbor Crest, the employee, Suzan Gienapp, requested FMLA leave from her employer, Harbor Crest, a residential nursing care facility because her daughter was undergoing treatment for thyroid cancer. Sounds clear so far. But, here is the twist, Gienapp actually took care of her grandchildren because her daughter could not do so while getting chemotherapy. The morally bereft employer and its attorneys fired Gienapp and argued, in part, that FMLA does provide leave to care for grandchildren, which is true. But the Seventh Circuit, was not buying this argument, holding that a jury could reasonably find that such “care” to the grandchild was actually care to her daughter, who could not fulfill her motherly responsibilities; and also that Gienapp cared for both her child and her grandchild. Specifically, the Court held:

Harbor Crest’s other theme is that Gienapp did not supply “care” for Trish Hoff at all. As Harbor Crest sees things, physicians and Hoff’s husband did that. According to Harbor Crest, what Gienapp did was care for her grandchildren, reducing the burdens on those who were caring for her daughter. The FMLA allows leave to care for children and parents, but not grandchildren and grandparents. That disqualifies Gienapp, the argument wraps up.

To the extent Harbor Crest maintains that Gienapp was not entitled to leave because she was not Hoff’s “primary” caregiver, the argument lacks support in the statute. Employees are entitled to leave to provide “care” for their children, 29 U.S.C. §2612(a)(1)(C); the word “primary” is just not there, and we can’t add it, for reasons explained above and in Ballard. But to the extent Harbor Crest contends that Gienapp provided care exclusively for her grandchildren, the argument has a statutory basis. What it lacks is a basis in undisputed fact. Gienapp contends that she provided care for both her child and her child’s children. That position cannot be rejected on summary judgment. Nor could we reject as a matter of law an argument that taking care of Hoff’s children supplied some “care” to Hoff herself; that depends on what Gienapp did and whether caring for the grandchildren had a potential benefit for the daughter’s health.

So what are the takeaways? (1) If you are contemplating taking FMLA to care for your grandchildren because your son or daughter is ill, make sure that the request goes in to take care of your child; (2) It would help your case, if during your FMLA leave, if you document the direct care that you are also providing your child in addition to caring for the grandkids; (3) you will not be able to get FMLA leave to care for your grandchildren if it is your son-in-law or daughter-in-law is seriously ill (as the FMLA requires it to be a connection through your son or daughter); and (4) most importantly, because FMLA can be tricky, if you face any problems from your employer call an employment law lawyers to help.

If you feel that you are being denied leave rights under the Family Medical Leave Act (FMLA) or are being retaliated against for taking medical leave, you should call the right attorney as quickly as possible to schedule a free and confidential consultation. The phone number to contact an Ohio attorney for FMLA help is 866-797-6040. While you focus on your family medical needs, let our FLMA attorneys focus on your medical leave rights.


The materials available at the top of this medical leave page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “how do I get medical leave under the FMLA?”, “what should I do when my job won’t give me medical leave?”, “can my boss deny me medical leave?”, “what should I do if I was fired in retaliation for taking FMLA leave?”, or “is my employer allowed to…?”, your best option is to contact an Ohio medical leave attorney to obtain advice with respect to FMLA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.

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