FMLA Leave for the Birth of a Grandchild?
By Jim Griffin, JD, Employment Counsel
Published October 23, 2018
A member recently called the HR Hotline asking if an employee can take leave under the Family and Medical Leave Act (FMLA) because the employee’s adult daughter is having a baby. The answer is not as simple as you may think.
An eligible employee may take FMLA leave for the birth of a son or daughter and to take care of the newborn child, but that provision does not apply to grandchildren. An employee can also take FML to care for the employee's spouse, son, daughter, or parent with a serious health condition, and we know that pregnancy and childbirth qualify as a serious health condition. So, it seems like the employee could take leave under that provision, right? Not necessarily.
FMLA regulations define the term “son or daughter” to only include an employee’s child who is either under age 18, or age 18 or older and “incapable of self-care because of a mental or physical disability” at the time that FMLA leave is to commence. To have a mental or physical disability, the employee’s son or daughter must meet the definition of “disability” under the Americans with Disabilities Act. Furthermore, “incapable of self-care” means that the individual requires active assistance or supervision to provide daily self-care in three or more of the activities of daily living. Activities of daily living could include activities such as grooming and hygiene, bathing, dressing, eating, cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, using a post office, etc.
Therefore, the employee would only be entitled to FMLA leave if her adult daughter was incapable of self-care due to a mental or physical disability at the time FMLA leave was to commence. In general, courts have found that an adult daughter’s “typical” childbirth, even one ending in a Cesarean section, would not be covered by the FMLA. There have also been cases where an employee’s adult daughter’s minor pregnancy-related complications of limited duration did not give rise to coverage under the FMLA.
However, if there are significant pregnancy or childbirth complications, and the employee could make a strong case that his or her adult daughter is incapable of self-care due to a disability, then the employee would be entitled to FMLA leave. Of course, the employer could require certification of the leave under the FMLA by the daughter’s physician. Even if the leave is not covered under the FMLA, you could consider providing a leave of absence under your general leave policy or other applicable policies.