Grandparents across America are celebrating this week.  And they have Suzan Gienapp to thank.  Here’s why:

The Facts

Suzan, who worked for Harbor Crest (a nursing home), informed her manager in January 2011 that she needed time off to care for her daughter, who was undergoing treatment for thyroid cancer.  Harbor Crest granted her FMLA leave.  Although she periodically touched base with her employer during her leave of absence, Suzan failed to identify when she expected to return to work.  Her daughter’s physician also made clear that the daughter would require assistance through at least July 2011.  Upon learning this, Harbor Crest assumed that Suzan would not return by the end of her twelve weeks of FMLA leave, and it hired a replacement.  When Suzan returned at the end of twelve weeks of FMLA leave, there was no job waiting for her.

The Court’s Ruling

Suzan’s request for FMLA leave was one which involved intermittent leave; therefore, according to the court, she was not required to identify an expected return date.  Section 29 C.F.R. §825.303, which governs unforeseeable leave, “does not require employees to tell employers how much leave they need, if they do not know yet themselves.”  Instead, employers can insist upon regular updates from the employee about an estimated return date. They can’t terminate the employee simply because they cannot provide a precise return.  Here’s the court’s decision:  Gienapp v. Harbor Crest (pdf)

Ok, but the court didn’t limit the reach of its ruling at that point.

Let’s talk grandmas and grandpas.

Harbor Crest argued that Suzan should not have been granted FMLA leave because she sought leave to care for her grandchild, a reason obviously not provided for under the FMLA.  But the court didn’t see that way.  Suzan looked after the kids while Suzan’s husband went to work, a “caring for” duty that the court determined benefited Suzan as she was recuperating.

Notably, the court found that it was required to:

frame the issue as whether a combination of assistance to one’s daughter, plus care of grandchildren that could take a load off the daughter’s mind and feet, counts as “care” under the Act.  To this the answer must be yes.  Harbor Crest has never contended that Gienapp’s assistance to other members of the family could not have given her daughter a mental boost. A person who knows that her family is well looked after has an important resource in trying to recover from a medical challenge. Doubtless some forms of familial assistance are too tangential to hold out a prospect of psychological benefits to a covered relative, but Harbor Crest does not contend that Gienapp’s aid was too slight to qualify.

So, apparently, “mental boosts” now are covered by the FMLA, and if they involve caring for grandkids, so be it.

Under the FMLA, the “caring for” duty typically has been split into two general categories — direct care and indirect care.  Direct care involves duties such as administering medication and cooking meals for the family member, or transporting them to and from the doctor for medical care.  Clearly, these functions are covered by the FMLA.  Generally speaking, the courts have frowned upon indirect care, which involves duties such as cleaning up mom’s basement after a flood, which Joe Lane had to deal with.  Do you remember Joe?  I told you about his story here.  Although he was required to care for his mom as a result of her diabetes and other medical conditions (which was legit), the court found that cleaning up his mom’s basement after a flood was not a “caring for” duty provided for under the FMLA.  Therefore, his time off to clean up the basement was not covered by the FMLA.  The Joe Lane court affirmed the principle that direct care for a family clearly is covered by the FMLA, while indirect care is not.

Suzan’s case is one that involves indirect care, so the expansive reading by the Seventh Circuit takes the FMLA to a land we really have not seen before.

Don’t get me wrong — I love grandmas and grandpas.  For what it’s worth, I always thought the song, “Grandma Got Run Over by a Reindeer” was kind of mean when you really thought about it.  I have such fond memories of my grandparents, and I mean them no harm!  But I also find it unsettling when a court — particularly one with a whole lot of influence on the interpretation of the FMLA — interprets the law in such a way that they become both the legislative and judicial branch of government.  The Seventh Circuit’s expansive reading of the “caring for” provision of the FMLA takes the statute too far. If Congress decides that the FMLA should cover leave to care for and look after grandbabies, there certainly are legitimate policy reasons for doing so.  But that’s the job of Congress, not a federal appellate court.

Insights for Employers

As my friends Marti Cardi and Megan Holstein point out, employers still are not obligated to provide FMLA leave to care for a grandchild who has a serious health condition.  As a result of this decision, however, employers may have to start erring on the side of providing FMLA leave in situations where their employees are looking after grandkids, so long as it is intertwined with providing traditional, direct care to a family member.