Under the Family Medical Leave Act (FMLA), a parent is entitled to take
FMLA leave for the birth or care of a newborn child. An interesting twist
on this issue was recently addressed by the Eleventh Circuit Court of
Appeals (the federal appeals court with jurisdiction over the federal
district courts of Florida, Georgia and Alabama) in Martin v. Brevard
County Public Schools: whether a grandparent who is the primary caregiver
of his grandchild is eligible for FMLA leave. In a terrific decision,
the Eleventh Circuit decided in favor of the grandparent.
In the case, the employee had several children who lived with him, one
of whom gave birth to a baby while the employee worked for a public school
district. The newborn came to live with the employee and the employee
provided substantial financial support to the child; the child’s
biological father did not live with the child. When the baby’s mother
was called up for military service, the employee applied for FMLA leave
to care for the newborn, claiming that he stood “in loco parentis”
(in the place of the parent) and that he was needed to care for the baby.
Although the employer initially approved the FMLA leave, it terminated
the employee before his 12-week leave was exhausted. Also, the mother
of the baby never actually left for military service, but the employee
continued to care for and provide for the newborn.
In response to the employee’s FMLA action, the employer argued that
the employee did not stand in loco parentis, and the district court granted
the employer’s motion for summary judgment. On the employee’s
appeal, the Eleventh Circuit reversed, holding that because the employee
provided substantial care and financial assistance to the newborn, the
fact that the newborn’s mother was still in the employee’s
home and provided care to the baby, did not change the fact that the employee
was, for all practical purposes, acting as a parent of the newborn.