The federal Family and Medical Leave Act (FMLA) does not directly cover grandchildren, but there are important exceptions that might let you take protected leave to care for them. Grandchildren are not listed as covered family members in the main FMLA law, which only includes spouses, parents, and children. However, if you are the legal guardian of your grandchild or if you have been acting as their parent (called “in loco parentis”), you may qualify for job-protected leave. The key issue is that most grandparents don’t realize they have a pathway to FMLA protection, and employers sometimes deny requests without investigating whether these exceptions apply. About 2.7 million grandparents in the United States are raising their grandchildren, yet many are unaware that they might be eligible for up to 12 weeks of unpaid, job-protected leave under federal law.
Five Key Takeaways You’ll Learn
🚀 The three situations when FMLA actually covers grandchildren and how to prove each one
💼 The exact difference between federal FMLA and state-paid leave laws that might help you
📋 Real court cases showing how grandparents won FMLA protections and what documentation you need
⚠️ Common mistakes employers and grandparents make that cost workers their jobs and benefits
🔄 Step-by-step process for requesting FMLA leave, certifying serious health conditions, and handling denial
Understanding Federal FMLA Rules: What the Law Actually Says
The Family and Medical Leave Act is a federal law that covers employers with 50 or more employees. The statute lists four types of protected leave: caring for a spouse, parent, or child with a serious health condition; your own serious health condition; newborn bonding; or military family leave. Grandchildren are completely absent from this list, which creates confusion for millions of working grandparents. The law was written in 1993 before the explosion of grandparents raising grandchildren due to the opioid crisis and other family challenges.
The critical word in the FMLA is parent. The law defines “parent” in an unusual way that opens the door for grandparents in certain situations. According to federal regulations, a parent can be “an individual who stood in loco parentis to an employee when the employee was a child.” This Latin phrase literally means “in the place of a parent.” So your grandchild might be covered if you were acting as their parent before they reached adulthood. Similarly, if you are the legal guardian of your grandchild, you typically qualify as the “parent” under the law.
The FMLA requires employers to provide up to 12 weeks of unpaid, job-protected leave in a 12-month period. If you meet the law’s requirements and your grandchild has a serious health condition, you cannot be fired or punished for taking this leave. Your health insurance benefits continue as if you were still working. When you return, your employer must give you the same job or an equal position. Yet many employers and employees don’t understand these protections exist.
Who Qualifies: The Three Main Pathways
Pathway One: You Are the Legal Guardian of Your Grandchild
If a court has granted you legal guardianship of your grandchild, federal law treats you as the parent. Legal guardianship means a judge has formally decided that you have the responsibility to care for the child and make medical and educational decisions. When you have a guardianship order, you are not just a caregiver—you are the legal parent for FMLA purposes. This is the clearest path to FMLA coverage. You should keep your guardianship papers easily accessible because your employer will likely ask to see them.
Pathway Two: You Stand “In Loco Parentis” to Your Grandchild
This second pathway is trickier because it does not require legal paperwork. According to the Department of Labor, in loco parentis includes persons with day-to-day responsibility to care for and financially support a child. Courts look at several factors: the child’s age when you took over care, how dependent the child was on you, the financial support you provided, and whether you performed typical parental duties like making medical decisions, enrolling them in school, and providing discipline.
The key requirement is that you must have stood in loco parentis when the employee was a child. This means the parent-child-like relationship had to exist before your grandchild reached adulthood. If you only started raising your grandchild after they turned 18, this pathway would not work. But if you raised them from age three until age seventeen, you clearly meet this standard.
Pathway Three: You Care for Your Own Child (the Grandchild’s Parent) Who Is Seriously Ill
A groundbreaking court case changed how employers must interpret the FMLA. In Gienapp v. Harbor Crest, the Seventh Circuit Court of Appeals ruled that an employee could take FMLA leave to care for her daughter with cancer by watching the grandchildren. The court found that caring for the grandchildren reduced the burden on the sick parent, providing physical and emotional support. This case opened a door: if your adult child (the grandchild’s parent) has a serious health condition and you are helping by caring for the grandchildren, you might qualify for leave—not to care for the grandchildren directly, but to care for your child indirectly.
What Qualifies as a “Serious Health Condition” Under FMLA
Your grandchild’s condition must meet the FMLA definition of serious health condition. This term has specific legal meaning and does not include minor illnesses. According to FMLA regulations, a serious health condition involves either inpatient care (overnight stay) or continuing treatment by a healthcare provider.
| Type of Condition | What It Includes |
|---|---|
| Inpatient care | Any overnight hospital, hospice, or residential facility stay |
| Incapacity lasting 3+ days | Missing school or work for more than three consecutive days plus continuing treatment (at least two doctor visits within 30 days) |
| Chronic conditions | Asthma, diabetes, epilepsy requiring ongoing management twice yearly |
| Long-term conditions | Cancer, Alzheimer’s disease, terminal illness requiring ongoing medical supervision |
| Multiple treatment conditions | Chemotherapy, physical therapy, dialysis, restorative surgery with recovery time over three days |
| Mental health conditions | Depression, anxiety, PTSD, substance abuse treatment requiring inpatient or ongoing care |
A cold or regular flu does not qualify unless it leads to serious complications requiring hospitalization. A broken arm that heals normally would not qualify. But diabetes requiring regular doctor visits, asthma requiring management, cancer requiring chemotherapy, or a severe infection requiring hospitalization would all qualify. The condition must require either an absence of more than three consecutive full-calendar days (not just workdays) plus continuing medical care.
Federal FMLA vs. State-Level Laws: The Critical Difference
Many people do not realize that their state might offer better protections than the federal FMLA. The federal law is the minimum protection, but many states have expanded it. This is crucial because some states specifically include grandchildren as covered family members, while others do not.
State laws that cover grandchildren:
Washington State’s paid leave law explicitly includes grandchildren and grandparents. A grandchild is defined as a child of the employee’s child. Washington allows up to 12 weeks of paid (not unpaid) leave.
California’s Paid Family Leave and California Family Rights Act (CFRA) originally covered grandparents and grandchildren. As of January 1, 2023, California expanded its definition even further to include any “designated person”—someone related by blood or whose association is the equivalent of a family member.
Connecticut allows leave to care for grandparents, grandchildren, and siblings. Connecticut even recognizes “affinity relationships” where you state in writing that you consider the relationship to be family-equivalent.
New York State’s Paid Family Leave covers grandchildren and grandparents. You can take 12 weeks of paid leave (at 67% of your wages) to care for a grandchild or grandparent with a serious health condition.
Oregon allows leave for grandparents and grandchildren.
Critical point: If you work in one of these states, you may have protections even if federal FMLA does not apply. Some states provide paid leave, while FMLA is unpaid. Some states have lower employer size requirements. Some states let you use paid leave from your job bank. Check your state’s specific rules—they might give you far better protection than federal law.
Real-World Scenarios: How FMLA Actually Works for Grandchildren
Scenario One: You Have Legal Guardianship
| What You Do | What Happens |
|---|---|
| Obtain court-ordered legal guardianship of your 8-year-old grandchild | You become the “parent” for FMLA purposes immediately |
| Your grandchild is diagnosed with leukemia requiring chemotherapy | Chemotherapy meets the serious health condition definition (multiple treatments over weeks) |
| You notify your employer 30 days in advance that you need FMLA leave | Your employer must approve leave; they cannot deny it simply because they are your grandchild |
| You take 8 weeks off during active chemotherapy treatment | These weeks count against your 12-week annual FMLA allowance |
| You return to work after treatment ends | Your employer must restore you to your same job or an equal position |
Why this works: You have clear legal status as the child’s parent through guardianship. The leukemia is clearly a serious health condition requiring continuing medical treatment.
Scenario Two: You Raised Your Grandchild Since They Were Young
| What Happens | What You Must Prove |
|---|---|
| Your grandchild lived with you from age 4 onward when their parent went to prison | Court records, school enrollment forms, medical records showing you as responsible party |
| Now your grandchild is 15 and breaks their leg, requiring surgery and six weeks recovery | School records, tax records listing the child as dependent, affidavits from neighbors/teachers about your role |
| The injury qualifies as serious health condition (inpatient surgery plus recovery over three days) | You provide documentation that you stood in loco parentis from age 4 to 15 |
| You request FMLA leave | Your employer must look at whether you were acting as the parent, not just whether you have legal guardianship |
Why this works: You have extensive factual evidence of parental duties. Courts have ruled that employers cannot automatically deny FMLA based on lack of legal guardianship if you can show you exercised parental responsibilities.
Scenario Three: Caring for Your Grandchild’s Parent Indirectly
| The Situation | How FMLA Applies |
|---|---|
| Your daughter (the grandchild’s parent) is diagnosed with terminal cancer | Terminal cancer is a serious health condition requiring continuing medical supervision |
| Your daughter cannot work and needs someone to manage the household and care for the grandchildren | You taking care of the grandchildren reduces the burden on your sick daughter |
| You notify your employer that you need FMLA leave | Under Gienapp v. Harbor Crest, caring for your daughter’s children may qualify as caring for your daughter |
| You take leave while your daughter undergoes chemotherapy and radiation | The leave protects both your daughter (your child with serious health condition) and provides care for grandchildren |
| You return when your daughter’s condition stabilizes | Weeks used count against your 12-week annual allowance |
Why this works: The court in Gienapp found that FMLA can cover indirect care—reducing burden on a seriously ill child by caring for their children.
How to Request FMLA Leave: Step-by-Step Process
Step 1: Determine If You Meet Basic Eligibility
First, confirm that FMLA applies at all. Your employer must have at least 50 employees within a 75-mile radius. You must have worked there for at least 12 months. You must have worked at least 1,250 hours in the past 12 months (roughly 24 hours per week). If your employer is smaller, check your state law instead. If you have not worked there 12 months, you are not FMLA-eligible, but state law might still protect you.
Step 2: Verify Your Relationship Status (Guardianship or In Loco Parentis)
If you have legal guardianship, collect your guardianship order from the court. Keep a copy with your HR file. If you are claiming in loco parentis status, gather documentation showing you raised the child: school enrollment records listing you as parent/guardian, medical records with your name, tax returns showing the child as dependent, affidavits from teachers or doctors, or statements from the child’s school attendance records. You do not need legal adoption or guardianship, but you need proof of your parental role.
Step 3: Confirm the Grandchild’s Serious Health Condition
Get clear diagnosis information. You will need a medical certification form completed by the child’s doctor. Have the healthcare provider specify: the condition’s start date, how long it will last, whether inpatient care is involved, dates of treatment, whether the child will need ongoing medical appointments (and if so, how many and how often). The form should show that the condition truly meets the FMLA definition.
Step 4: Provide Notice to Your Employer
If the need is foreseeable (planned surgery, known treatment schedule), you must give at least 30 days advance notice. If the need is unforeseeable (sudden illness, emergency), you must notify your employer as soon as practical—ideally the same day or next business day. Provide written notice if possible. Tell your employer the date leave will start, why you need leave (serious health condition of your grandchild), and approximately how much leave you need. You do not need to mention FMLA by name in your first request, but saying “I need to care for my grandchild who has a serious health condition” is sufficient.
Step 5: Complete Medical Certification Form
Your employer will likely give you the Department of Labor’s official form WH-380-F (Certification of Illness or Injury of a Family Member). You fill out the employee section with your name, the relationship (grandchild), and a description of the care you will provide. Then the form goes to your grandchild’s healthcare provider. The provider completes their section with medical details. The form must be returned within 15 days. Do not leave the provider’s section blank or give incomplete information—this is the top reason FMLA requests get delayed or denied.
Step 6: Address Relationship Documentation If Needed
If you claim in loco parentis status and have no legal guardianship order, your employer may ask for proof of the relationship. A simple written statement from you explaining your parental role is often sufficient, but your employer can request reasonable documentation. Provide school records, medical records, tax forms, or written statements from people who know about your role. Employers cannot demand excessive documentation, but they can ask enough to confirm the relationship exists.
Step 7: Get Approval and Begin Leave
Once your employer receives complete certification and relationship documentation, they must decide whether to approve FMLA leave. They should notify you in writing whether the leave is approved, denied, or requires additional information. If approved, you can begin taking leave. You do not forfeit pay during FMLA leave, but it is unpaid time. However, you can use vacation days, sick days, or paid time off if your employer allows (or requires) you to run them concurrent with FMLA. Your health insurance continues.
Step 8: Provide Updates During Leave
Some employers require you to check in periodically. If you originally said the leave would last eight weeks but the doctor now says 12 weeks, notify your employer immediately. If the situation changes and you can return earlier, tell them. Keep lines of communication open. Failing to update your employer can cause them to think you abandoned your job, which happened in the Gienapp case and almost cost the employee her job.
Step 9: Return to Work
When your leave ends or when you are able to return, notify your employer and show up for your scheduled shift. Your employer must restore you to your same position or an equivalent position with the same pay, benefits, and terms of employment. If your employer has filled your job, they must place you in an equivalent role. You cannot be demoted, moved to a less desirable shift, or given fewer hours as punishment for taking FMLA leave.
Medical Certification Form Details: Every Line Item Explained
Employee Section (You Complete)
Name and Position: Self-explanatory. Your legal name, job title, and department.
Relationship to Family Member: Write “grandchild.” If you have legal guardianship, note that. This is where you signal that you are the grandchild’s parent under FMLA, not just a visiting grandparent.
Family Member’s Name and Date of Birth: Full legal name of your grandchild and birth date. This information is used to ensure the healthcare provider is certifying the right person.
Description of Care You Will Provide: Write specifically what you will do. Examples: “I will accompany my grandchild to all chemotherapy appointments and stay with her in the hospital; I will manage medications and monitor symptoms; I will arrange transportation to treatment.” Do not just write “provide care”—be specific. “I will ensure she attends school appointments and helps her with homework while she recovers” is better than “help with schoolwork.” Specific language shows the employer you understand the seriousness of the situation.
Estimate Leave Needed: Put a date range. “I estimate I will need leave from January 10, 2025 through March 15, 2025 (10 weeks)” is better than “several weeks.” If you are unsure, write “approximately 8-12 weeks pending doctor’s assessment.” Never leave this blank.
Healthcare Provider Section (Doctor Completes)
Date Condition Commenced: When did the illness start? January 3, 2025. This is objective and factual.
Probable Duration: How long will the condition last? “Three months,” “Six months,” “Permanent,” “Until discharged from hospital.” Be realistic. If a doctor writes “indefinite” or “unknown,” employers sometimes delay approval, so the healthcare provider should give their best estimate.
Incapacity Dates: If the grandchild cannot attend school or normal daily activities, the provider writes the dates when incapacity began and will end. This is crucial—it proves the serious health condition actually prevents normal functioning.
Inpatient Care: Did your grandchild stay overnight in a hospital? Yes or no. If yes, list admission and discharge dates. Inpatient care automatically qualifies as serious health condition, so this is a strong indicator of severity.
Treatment Visits: Will the grandchild need doctor visits? How often? “Yes, twice weekly for chemotherapy for 12 weeks” or “Yes, three times per week for physical therapy.” If the answer is “no treatment visits needed,” the condition probably does not qualify, so make sure the provider explains what ongoing supervision exists.
Frequency and Duration: Approximately how often will your grandchild need your care? “Daily during school hours and evenings” or “During all treatment appointments (three times weekly) plus recovery days.” This tells the employer when you will actually need to be absent.
Employee’s Inability to Perform Job Functions: This section applies if you are sick, so the provider should write “N/A—this is for a grandchild’s condition” or leave it blank.
Critical mistakes on medical certification:
If the form is incomplete, has blank sections, or contains vague language like “as needed” or “ongoing,” employers can reject it and send it back for completion. This delay can cost you weeks of protected leave. If the doctor writes “I don’t know” or “It depends,” the employer will likely delay approval while seeking clarification. If the form does not clearly show the condition requires continuing care, it may not meet FMLA’s serious health condition definition, and leave gets denied.
Dos and Don’ts: What to Do and Avoid
Do’s (5 Key Actions)
- Do notify your employer in writing. An email, formal letter, or completed request form creates documentation. Telling a coworker or mentioning it casually is not sufficient if disputes later arise.
- Do provide advance notice when possible. If you know surgery is scheduled for 30 days from now, tell your employer immediately. This prevents the employer from claiming surprise or inability to cover your job.
- Do include family relationship documentation proactively. If you have a guardianship order, send a copy with your FMLA request. If claiming in loco parentis, provide school records or doctor’s confirmation that you are the responsible party.
- Do follow your employer’s normal call-in procedures. If your company requires you to call a specific number or notify a specific person when absent, follow that rule. FMLA does not exempt you from following normal notice procedures.
- Do maintain regular communication during leave. Check in with your employer as required. If anything changes, notify them immediately. If you can return early, say so. Silence makes employers suspicious.
Don’ts (5 Key Mistakes)
- Don’t assume your employer knows about your grandchild’s condition. Even if you mentioned it casually, give formal notice. “I mentioned she was sick last month” is not the same as “I am requesting FMLA leave effective immediately.”
- Don’t provide incomplete medical certification. Do not let your grandchild’s doctor submit a form with blank spaces. Call the doctor’s office, explain that incomplete forms get rejected, and ask them to complete every section thoroughly.
- Don’t claim in loco parentis status without documentation. Saying “I raised her since age five” without evidence (school records, tax documents, medical records) makes your employer suspicious. Provide supporting documents upfront.
- Don’t stop communicating once leave starts. Disappearing without updates makes employers think you abandoned your job. Provide the updates they request, even if just a brief email saying “Still on track to return March 15 as planned.”
- Don’t return to work without notifying your employer. Do not just show up after being absent. Call or email first to confirm your return date, especially if the date changed from original estimates.
Pros and Cons: Benefits and Drawbacks of Pursuing FMLA for Grandchildren
| Pros | Cons |
|---|---|
| Your job is legally protected—employer cannot fire you for taking leave | Leave is unpaid; you lose income (though you might use vacation/sick days) |
| Your health insurance continues under the same terms | Only 12 weeks per year; if your grandchild has a chronic condition, you may exhaust leave |
| You can take leave intermittently (one day per week) if the condition allows | Employer might scrutinize your work performance more closely after return |
| No eligibility waiting period—if you meet requirements, protection is immediate | If your employer is small or state has no paid leave law, you have no income replacement |
| Leave does not count against your performance evaluation or raise | Taking leave might make you stand out as unavailable, affecting promotions (though retaliation is illegal) |
| You are restored to your same or equivalent job afterward | Colleagues might resent having to cover your work while you are gone |
| State paid leave programs provide wage replacement (in some states) | Proving in loco parentis status requires documentation and can be emotionally difficult |
| Protects you if your grandchild needs ongoing multiple appointments | Employer might delay approval by requesting additional certification, costing you weeks |
Common Mistakes That Cost Grandparents Their Jobs
Mistake 1: Not Requesting FMLA Formally
Many grandparents mention casually that they need time off but never formally request FMLA. The employer treats it as a regular absence request, counts the days against your vacation time, and then fires you when vacation runs out. Meanwhile, you thought you were protected. Lesson: Put your request in writing and use the word “family and medical leave” or reference FMLA specifically.
Mistake 2: Providing Incomplete Medical Certification
Your grandchild’s doctor returns the certification form with several blank spaces because they were too busy to complete it fully. You submit it anyway. Your employer rejects it as insufficient, delays approval, and you run out of paid time off while waiting. Lesson: Follow up with the healthcare provider. Call the office, ask them to complete every section, and confirm receipt before submitting to your employer.
Mistake 3: Claiming In Loco Parentis Without Supporting Documents
You tell your employer you raised your grandchild since age seven, but you have no documentation. They deny FMLA, saying there is no proof. A court might have ruled in your favor if you had provided school enrollment forms, tax records, and medical records showing your role. Lesson: Gather documentation before requesting leave—or immediately after if you have not already.
Mistake 4: Disappearing Without Updates
You take FMLA leave and your employer never hears from you. You do not respond to emails or calls asking about your return date. After 12 weeks, you try to return, but your job has been filled. The employer argues you abandoned your position. Lesson: Maintain contact. Respond to requests for updates. Provide periodic status reports.
Mistake 5: Not Knowing Your State Law
You work in New York but believe federal FMLA is your only option. You do not realize New York’s Paid Family Leave would give you paid leave (67% of wages) rather than unpaid. You suffer financially when you could have had income replacement. Lesson: Research your state’s family leave law. It might be better than federal FMLA.
Mistake 6: Using Casual Language in Requests
You email HR: “I might need a few days off soon for personal reasons.” Your employer has no obligation to treat this as FMLA notice. Later, you need three weeks for your grandchild’s medical crisis, but your employer claims you never gave proper notice. Lesson: State clearly that you have a family medical reason and need FMLA protection.
Mistake 7: Not Meeting the 12-Month Employment Requirement
You have worked at your company for 11 months when your grandchild is hospitalized. You are not FMLA-eligible. You take unpaid leave, but without FMLA protection, your employer can terminate you when you do not return after one week. Lesson: Check eligibility requirements. If you have not been there 12 months, explore state law or request unpaid personal leave as a courtesy, but understand you lack legal protection.
Key Court Rulings and Legal Precedents
Gienapp v. Harbor Crest (2014) – Seventh Circuit Court of Appeals
This landmark case ruled that an employee could take FMLA leave to care for her grandchildren when doing so supported her daughter who had cancer. Suzanne Gienapp worked at a nursing home and took leave to care for her daughter undergoing thyroid cancer treatment. She watched her daughter’s children so her daughter could focus on treatment. The employer denied her FMLA request because grandchildren are not listed as covered relatives. The Seventh Circuit reversed, finding that caring for grandchildren to help her sick daughter “indirectly” provided care to the daughter. This opened the door for many grandparents who were caring for grandchildren to support an ill child.
Coutard v. Municipal Credit Union (2017) – Second Circuit Court of Appeals
This case established that employers have a duty to inquire about in loco parentis status before denying FMLA leave. The employee requested leave to care for his grandfather, which is not a covered relationship under FMLA. The employer immediately denied it without asking whether the grandfather had raised him. The Second Circuit ruled that the employer had an obligation to investigate whether the “parent” definition might apply through in loco parentis relationship before denying leave. Employers can no longer dismiss FMLA requests for non-traditional family members without first asking questions.
Chapman v. Brentlinger Enterprises (2024) – Sixth Circuit Court of Appeals
In this recent case, an employee requested FMLA leave to care for her terminally ill adult sister. The employer denied it because siblings are not covered. The Sixth Circuit ruled that in loco parentis relationships can form between adult siblings if one provides care and financial support to the other. This potentially expands FMLA protection beyond the original intent. The court rejected the idea that a parent-child dynamic must exist from childhood; it can form when one adult assumes responsibility for another. This ruling applies in Kentucky, Michigan, Ohio, and Tennessee, but other courts may follow this reasoning.
Novak v. Metrohealth Medical Center (2001) – Sixth Circuit Court of Appeals
This case is important for what it did not allow. An employee sought FMLA leave to care for her adult daughter with postpartum depression and to watch the grandchild. The court ruled that grandchildren are generally not covered, even indirectly, unless the employee is the child’s legal guardian or acts in loco parentis. This case established the narrow scope: FMLA does not automatically cover grandchildren just because the parent is ill. A clear relationship status (guardianship or in loco parentis from childhood) is required.
State-by-State Comparison: What Your State Provides
| State | Covers Grandchildren? | Type of Leave | Duration | Key Feature |
|---|---|---|---|---|
| California | Yes | Paid leave | 8 weeks | Includes “designated persons” (expanded definition) |
| Colorado | Yes | Paid and unpaid | 12 weeks | Applies to employers with 16+ employees |
| Connecticut | Yes | Unpaid | 16 weeks | Includes “affinity relationships” (self-declared family equivalents) |
| Delaware | Yes | Paid | TBD (recent law) | New program starting soon |
| Hawaii | Yes | Paid and unpaid | 12 weeks | Covers caregiving broadly |
| Indiana | Yes | Unpaid | Limited | Military-related only |
| Maine | Yes | Unpaid | 10 weeks | 2-year period |
| Maryland | Yes | Paid | TBD | Expanding paid leave program |
| Massachusetts | Yes | Paid and unpaid | 12-26 weeks | Depends on circumstances |
| Michigan | Yes | Paid | 40 hours | Per benefit year |
| New Jersey | Yes | Paid and unpaid | 12 weeks | Expanded from previous law |
| New York | Yes | Paid | 12 weeks | 67% of wages up to maximum cap |
| Oregon | Yes | Unpaid | 12 weeks | State equivalent to FMLA |
| Rhode Island | Yes | Paid and unpaid | 16 weeks | Family leave insurance program |
| Vermont | Yes | Paid | 12 weeks | Paid family leave program |
| Washington | Yes | Paid | 12 weeks | Includes any regularly residing family member |
| Federal FMLA | Limited | Unpaid | 12 weeks | Through guardianship or in loco parentis only |
Note: This table shows states with explicit coverage. Many other states allow leave through paid sick time, ADA accommodations, or other mechanisms. Check your specific state’s Department of Labor website.
Employer’s Perspective: How Companies Must Handle Requests
If you are an employer or HR professional, here is what federal law requires:
When an employee requests leave to care for a grandchild, you cannot immediately deny it. Under the Coutard ruling, you must investigate whether the employee might qualify through in loco parentis or guardianship status. Ask questions: “Are you the legal guardian?” “Did you raise this child?” “What role have you played in this child’s care?” Only after determining the person does not meet FMLA criteria can you deny the request. Denying without inquiry can expose you to liability.
If the employee provides guardianship papers or evidence of in loco parentis status, and the grandchild has a serious health condition, you must approve the leave. You cannot require excessive documentation beyond what regulations allow. You must maintain health insurance benefits. You must restore the employee to their same job. Firing or demoting an employee for taking FMLA leave is illegal and can result in lawsuits.
What to Do If Your FMLA Request Is Denied
If your employer denies FMLA leave, take these steps:
Step 1: Get the Denial in Writing
Request that your employer provide the reason for denial in writing. If they refuse, send an email asking “Can you confirm in writing that you have denied my request for FMLA leave on [date] because [reason]?” This creates documentation.
Step 2: Review the Reason
Common denial reasons: “Grandchildren are not covered” (this may be wrong under Coutard and Gienapp); “You do not have legal guardianship” (but you might qualify through in loco parentis); “The condition is not serious enough” (request their written definition of serious health condition—they may have misunderstood).
Step 3: File a Complaint with the DOL
Contact the U.S. Department of Labor’s Wage and Hour Division. File a complaint online or by phone. The DOL will investigate whether your employer violated FMLA. In fiscal year 2023, the DOL recovered more than $987,000 in back wages for 395 workers in FMLA cases.
Step 4: Consult an Employment Attorney
An attorney can review your situation, determine if you have a valid claim, and represent you. Many employment attorneys work on contingency (you pay only if you win). If your employer violated FMLA, you can recover: back pay for lost wages, liquidated damages (often doubling the amount owed), attorney’s fees, and court costs. In some cases, the employer must reinstate you to your job.
Step 5: Consider Your State’s Administrative Process
Your state may have its own family leave law and its own complaint process. File both federal (DOL) and state complaints if applicable.
FAQs
Q: Can I take FMLA to care for a grandchild if I have legal guardianship?
A: Yes. Legal guardianship makes you the “parent” under FMLA, allowing you to take up to 12 weeks of unpaid, job-protected leave for your grandchild’s serious health condition.
Q: What if I raised my grandchild but do not have legal guardianship?
A: You may still qualify through “in loco parentis” status. Provide evidence that you raised the child (school records, tax documents, medical records) showing you acted as their parent.
Q: Does my employer have to approve FMLA leave for grandchildren?
A: If you meet eligibility criteria and your grandchild has a serious health condition, yes. Your employer cannot deny leave without a valid reason. Under recent court rulings, they must investigate before refusing.
Q: Is FMLA leave paid?
A: No. Federal FMLA is unpaid. You can use vacation or sick days. Some states offer paid family leave instead.
Q: Can I take one day a week for my grandchild’s ongoing appointments?
A: Yes. FMLA allows intermittent leave (one day at a time) if the condition requires periodic care.
Q: What if I just learned my state has better leave laws than federal FMLA?
A: Use your state’s law. Many states provide paid leave, cover more family members, or have lower employer size requirements than federal FMLA.
Q: Can my employer fire me for taking FMLA leave?
A: No. Termination for FMLA use is illegal. If this happens, consult an attorney immediately—you have grounds for a lawsuit.
Q: How do I prove I stand in loco parentis to my grandchild?
A: Gather school enrollment records, medical records, tax forms showing the child as dependent, letters from teachers, or statements from neighbors showing your parental role.
Q: My employer says grandchildren are never covered by FMLA. Is that true?
A: No. Grandchildren can be covered through guardianship or in loco parentis status, or if caring for them supports an ill adult child, or through state law.
Q: What if my employer asks for medical certification from my grandchild’s doctor?
A: This is normal. Have the doctor complete the official Department of Labor form (WH-380-F) with detailed information about the condition, treatment dates, and anticipated duration.
Q: Can I be punished when I return from FMLA leave?
A: No. Your employer must restore you to your same job or an equivalent role with the same pay and benefits. Punishment for taking leave is illegal.
Related reading
- What Benefits Do Grandparents Have Adopting Grandchildren? (w/Examples) + FAQs
- Are Grandchildren Considered Heirs? (w/Examples) + FAQs
- Can Grandparents Adopt Their Grandchild? (w/Examples) +FAQs
- Can Grandchildren Be Added to Health Insurance? (w/Examples) + FAQs
- Do Grandchildren Pay Inheritance Tax? (w/Examples) + FAQs
- Do I Have a Legal Right to See My Grandchildren? (w/Examples) + FAQs
- How to Qualify for Child Tax Credit (w/Examples) + FAQs