Can an employee take an intermittent leave to care for a dependent child (under age 18) who is giving birth and then take time to assist in the care of the grandchild for doctor’s appointments and the like? — Alessandra in Marin City
To determine what, if any, time off is appropriate in a leave of absence scenario, you must first consider the laws that may apply and then examine your company’s policies on family and medical leave.
Let’s assume that your company is covered by the federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) and that the employee in question has worked the required period of time. These laws allow eligible employees to take up to 12 workweeks of job-protected time off during the employer’s defined 12-month period to care for a family member, including a child, with a “serious health condition.” A “serious health condition” includes any period of incapacity due to pregnancy, or for prenatal care. The regulations define a “child” as a biological, adopted, or foster child; as a stepchild; as a legal ward; or as a child of a person standing in loco parentis (see below) who is either under age 18 or age 18 or older and incapable of self-care because of a mental or physical disability.
Thus, a child for FMLA/CFRA purposes is generally under age 18. The legal guardian of a child who is a “legal ward” would stand in the shoes of the biological parent. Being “in loco parentis” refers to a person who has day-to-day responsibilities to care for and financially support a child; it does not require a biological or legal relationship. The regulations authorize employers to require reasonable documentation verifying an employee’s relationship to the child. If the child is incapable of self-care, then the child’s age does not matter. The child must require active assistance or supervision to provide daily self-care for activities such as grooming and dressing.
To answer the first part of Alessandra’s question, the employee may take FMLA/CFRA time off on an intermittent basis or in a block of time to care for the pregnant minor child during the time she has a serious health condition. This would include the time before, during, and after delivery in which the child is incapacitated.
With respect to care of the employee’s grandchild, the FMLA/CFRA do not cover grandchildren and grandparents in the definitions of “family member.” However, if the employee in question became the legal guardian of the grandchild or acted in loco parentis, the grandchild would qualify as a child under the FMLA/CFRA. However, the FMLA/CFRA do not apply to routine doctor visits or checkups; the grandchild would have to suffer from a serious health condition for which the employee would be providing care.
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Two other laws may apply to this scenario. California Labor Code Section 233, also known as “kin care,” authorizes employees to use up to half of their annual allotment of accrued sick leave for periods of time off to care for an ill family member. The family member need not have a serious illness, as with the FMLA/CFRA, and the child need not be under age 18. Therefore, in this scenario, the employee could use sick leave to take the pregnant child to doctor’s appointments. However, the kin care law does not cover grandchildren.
If the employee works in San Francisco, the city’s paid sick leave ordinance would authorize the employee to use accrued sick leave to care for the pregnant child or the grandchild for illnesses or routine doctor’s appointments.
Many employer policies are silent on the issue of the child’s age for purposes of FMLA/CFRA eligibility. Employers should consider whether they wish to grant the benefits of the FMLA/CFRA to employees with seriously ill adult children. For employers that want to limit time off to those scenarios covered by the FMLA/CFRA, it is advisable to include the definition from the regulations in their policy. For those that wish to grant this time off, they can either do so on a case-by-case basis in which similar situations are handled similarly or have an explicit policy.
Mary L. Topliff, Esq., is principal of the Law Offices of Mary L. Topliff in San Francisco, specializing in employment law counseling, training, and compliance.