January 02, 2009
Can a Grandparent Take FMLA Leave?

Suppose an employee takes an intermittent leave to care for a pregnant dependent child (under age 18) and then time to help care for the new grandchild, including going to doctor’s appointments and the like. Are these periods of time off covered by the federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA)?

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Here’s a look at the law that applies. An eligible employee may take time off under these laws to care for a family member, including a child, with a “serious health condition.” A “serious health condition” includes any period of incapacity due to pregnancy or for prenatal care. The regulations define a “child” as a biological, adopted, or foster child; as a stepchild; as a legal ward; or as a child of a person standing in loco parentis (see below) who is either under age 18 or age 18 or older and incapable of self-care because of a mental or physical disability.

Thus, a child for FMLA/CFRA purposes is generally under age 18. The legal guardian of a child who is a “legal ward” would stand in the shoes of the biological parent. Being “in loco parentis” refers to a person who has day-to-day responsibilities to care for and financially support a child; it does not require a biological or legal relationship. The regulations authorize employers to require reasonable documentation verifying an employee’s relationship to the child. If the child is incapable of self-care, then the child’s age does not matter. The child must require active assistance or supervision to provide daily self-care for activities such as grooming and dressing.

Thus, the employee in this scenario may take FMLA/CFRA leave intermittently or in a block of time to care for the pregnant minor child during the time she has a serious health condition. This would include the time before, during, and after delivery in which the child is incapacitated.

With respect to care of the employee’s grandchild, the FMLA/ CFRA do not cover grandchildren and grandparents in the definitions of “family member.” However, if the employee in question became the legal guardian of the grandchild or acted in loco parentis, the grandchild would qualify as a child under the FMLA/CFRA. Keep in mind, though, that the grandchild would have to suffer from a serious health condition for which the employee would be providing care.

Other laws might also apply. First, California’s Kin Care law (Labor Code Section 233) permits employees to use up to half of their annual allotment of accrued sick leave for periods of time off to care for an ill family member. The family member need not have a serious illness and the child need not be under age 18. Therefore, the employee here could use sick leave to take the pregnant child to doctor’s appointments. However, the Kin Care law does not cover grandchildren. Second, if the employee works in San Francisco, the city’s paid sick leave ordinance would authorize the employee to use accrued sick leave to care for the pregnant child or the grandchild for illnesses or routine doctor’s appointments.

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