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Grandfather Eligible for Leave to Care for Newborn Grandchild under FMLA

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.

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