I decided to stick with a theme this week, and the winner is…the Family and Medical Leave Act! Affectionately known as FMLA, this law continues to be confusing, and a source of frustration for employers. Why? Because it’s a confusing and frustrating law to understand and administer. (I’ll bet you were anticipating some earth shattering explanation, weren’t you?)
A recent case out of the US Court of Appeals for the 7th Circuit, Gienapp v. Harbor Crest and Myra Chattic, is a great example of the confusion surrounding FMLA-qualified leave to care for an adult child.
Suzan Gienapp was employed by Harbor Crest, a residential nursing care facility. In January of 2011, Gienapp notified her manager, Myra Chattic that she needed time off to care for her daughter, who was receiving treatment for thyroid cancer. Gienapp submitted the necessary paperwork – without an expected return-to-work date – and her request for FMLA leave was granted. To further complicate the issue, the medical certification submitted by the daughter’s physician indicated that the time for recovery was uncertain and that Gienapp’s daughter would likely need assistance through at least July 2011.
Based on the physician’s statement, and assuming Gienapp would not return to work by April 1, 2011 (the date her FMLA leave would be exhausted), Harbor Crest hired a permanent replacement. However, that assumption turned out to be faulty as Gienapp returned to work on March 29, 2011 and was told she no longer had a job. (Apparently not everyone knows what happens when you “assume!”) After a series of administrative actions, Gienapp sued her former employer for violating her rights under the FMLA.
Highlights of the Issues
1. Harbor Crest first argued that Gienapp forfeited her right to reinstatement under the FMLA when she failed to provide a return-to-work date.
Gienapp successfully argued that, because her daughter’s status was changeable (she could have died at any time or continued to recover), the leave was defined as “unforeseeable” under the regulations. Where the leave is unforeseeable, the employee is required to follow the employer’s policies. In this case, Harbor Crest instructed Gienapp to call in monthly, which she did. Rather than ask Gienapp for additional details or estimates on the length of her leave, it appears the employer made an assumption. Chattic incorrectly assumed that because the physician indicated that Gienapp’s daughter would require assistance until at least July, Gienapp would be the one providing the assistance and therefore unable to return to work. (STRIKE 1!)
2. The second argument the employer attempted was that, because the daughter was an adult and married, she did not meet the statutory definition of a “child” under the FMLA.
The Court rejected this argument because the statute defines a child, in part, as, a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is:
(A) under 18 years of age; or
(B) 18 years of age or older and incapable of self-care because of a mental or physical disability.
The Court held that “[a]ny biological child is treated as a ‘son or daughter’ if either the age condition or the disability condition is satisfied.” (STRIKE 2!)
3. Finally, Harbor Crest attempted to argue that the leave was not qualified under the FMLA because Gienapp cared for her grandchildren – not her daughter – only reducing the burden on those actually providing care.
Here, the Court took an interesting position, asking and answering a question that appears to go to the heart of the matter. Does “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 [FMLA]. To this the answer must be yes.” (STRIKE 3!)
Employer Compliance Points
There are three important lessons to be taken from this somewhat groundbreaking case:
First, if an employee requests otherwise qualified FMLA leave, the absence of a return-to-work date is not a basis for the employer to deny the leave, or more drastically, to terminate the individual’s employment. The FMLA has provisions for “unforeseeable” leave which should be understood and followed. Certainly, a clear understanding of those provisions, and better verbal and written communication between Chattic and Gienapp would have gone a long way in resolving the issues in this case without the need for legal action.
Secondly, employers should be familiar with the rules regarding qualified FMLA leave for an adult child. Especially in light of the Court’s decision that, by caring for her grandchildren, Gienapp was providing care for her daughter. Employers may see an increase in requests for FMLA leave to care for an adult child, which includes caring for grandchildren. Granting these requests sets a company-wide precedent; denying them could result in costly legal actions.
Finally, regardless of whether you agree with the outcome in this case or not, it’s important to understand the broad-minded approach administrative agencies such as the Department of Labor and Equal Employment Opportunity Commission, as well as the courts appear to be taking when deciding cases involving the Family and Medical Leave Act, the Americans with Disabilities Act, and other similar statutes. Employers should consider erring in favor of the employees when administering leave policies.
While this case is only precedent in the 7th circuit, it will be interesting to see if other courts adopt the reasoning expressed in this decision. However, the best approach for employers is to handle issues correctly at the company level, so there is no need for legal action. That means having a current working knowledge of the law, handling each situation individually and on its own merits, and working with employees to find a fair and mutually acceptable resolution. And remember…don’t assume, or you know what happens!
Please feel free to contact me at firstname.lastname@example.org, or 585-672-4142, x15 with questions or for more information.
Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.
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