FMLA Does Not Require Return Date if Leave is Unforeseeable: Seventh Circuit | Practical Law

FMLA Does Not Require Return Date if Leave is Unforeseeable: Seventh Circuit | Practical Law

In Gienapp v. Harbor Crest, a case in which an employee alleged a violation by her employer of the Family and Medical Leave Act of 1993 (FMLA), the US Court of Appeals for the Seventh Circuit held that the employee did not fail to provide essential information regarding the duration of her leave under the FMLA regulation providing unforeseeable leave where the employee did not know the duration yet herself. The court further held that under the FMLA, the employee's married adult daughter was her qualifying biological child and the combination of care provided by the employee to her covered daughter and to her grandchildren counted as "care" under the FMLA.

FMLA Does Not Require Return Date if Leave is Unforeseeable: Seventh Circuit

Practical Law Legal Update 9-572-5605 (Approx. 6 pages)

FMLA Does Not Require Return Date if Leave is Unforeseeable: Seventh Circuit

by Practical Law Labor & Employment
Published on 26 Jun 2014 • USA (National/Federal)
In Gienapp v. Harbor Crest, a case in which an employee alleged a violation by her employer of the Family and Medical Leave Act of 1993 (FMLA), the US Court of Appeals for the Seventh Circuit held that the employee did not fail to provide essential information regarding the duration of her leave under the FMLA regulation providing unforeseeable leave where the employee did not know the duration yet herself. The court further held that under the FMLA, the employee's married adult daughter was her qualifying biological child and the combination of care provided by the employee to her covered daughter and to her grandchildren counted as "care" under the FMLA.
On June 24, 2014, in Gienapp v. Harbor Crest, a case in which an employee alleged a violation by her employer of the FMLA, the US Court of Appeals for the Seventh Circuit held that the employee did not fail to provide essential information regarding the duration of her leave under the FMLA regulation providing unforeseeable leave where the employee did not know the duration yet herself. The court further held that under the FMLA, the employee's married adult daughter was her qualifying biological child and the combination of care provided by the employee to her covered daughter and to her grandchildren countedas "care" under the FMLA. (14-1053, (7th Cir. June 24, 2014).)

Background

Suzan Gienapp was an employee of Harbor Crest, a residential nursing facility in Illinois. In January 2011, Gienapp requested leave under the FMLA to care for her daughter who was receiving medical treatment for thyroid cancer. Acknowledging that Gienapp's daughter had a serious health condition (as is required under the FMLA) Myra Chattic, the nursing home's manager, granted the leave. The following events occurred:
  • While she was on leave, Gienapp mailed in an FMLA form but left out the question regarding duration of leave.
  • Harbor Crest did not:
    • ask Gienapp to fill in the blank answer on the form; or
    • pose written questions as the leave progressed.
  • Gienapp's daughter's physician stated on the form that:
    • her recovery was uncertain; and
    • if she did recover she would need assistance at least through July 2011.
  • Chattic inferred from the physician's statement that Gienapp would be unable to return to work before April 1 when the 12 weeks would end.
  • In mid-February Chattic hired a replacement into Gienapp's position.
  • Gienapp reported for work on March 29, but Chattic told her she no longer had a job with Harbor Crest.
Gienapp exhausted her administrative remedies and then brought this action. The district court granted Harbor Crest's motion for summary judgment, ruling that Gienapp had forfeited her rights under the FMLA because she did not tell Harbor Crest exactly how much leave she would take.
Gienapp appealed to the Seventh Circuit.

Outcome

The Seventh Circuit held that:
  • Gienapp did not fail to provide essential information, and therefore did not violate the FMLA regulation providing unforeseeable leave where she did not yet know the duration herself.
  • Gienapp's married adult daughter was her qualifying biological child for whom she could take leave.
  • The combination of care provided by Gienapp to her daughter and to her grandchildren (to take the responsibility off of her daughter and son-in-law's shoulders) counted as "care" under the FMLA.
In response to Harbor Crest's contention that Gienapp had forfeited her rights under the FMLA by not disclosing exactly how much leave she would take, the Seventh Circuit found that:
  • The FMLA requires that an employee give notice to her employer of the need for leave. Gienapp did give this notice, and Harbor Crest granted the leave under the FMLA. Gienapp did not however provide a date when she expected to return to work.
  • Because her daughter's health was uncertain, Gienapp was unable to provide a firm date of return. The DOL calls this leave "unforeseeable."
  • Due to the unforeseeable nature of the leave, Gienapp only had two options to fill out that blank answer regarding duration of the leave. She could either have written:
    • "I will return no later than April 1, and earlier if possible"; or
    • "I will stay with my daughter as long as necessary, even if that means giving up my job, but will return by April 1 if things work out."
  • Harbor Crest's position is that either of these statements would have complied with the FMLA's notice requirement and held Gienapp's job open. However, neither statement would have given Harbor Crest anymore information than the blank answer. It is difficult to see why omitting something so obvious has such a striking legal effect, especially when Harbor Crest could and should have asked.
  • The notice requirements for unforeseeable leave are found under 29 C.F.R. § 825.302 and are discussed in Righi v. SMC Corp., 632 F.3d 404 (7th Cir. 2011). Section 825.303 does not require employees to tell employers how much leave they need if they do not yet know themselves. Instead, this Section tells employees to comply with the employer's policies. From the evidence it does not appear that Gienapp fell short in this regard. Instead, it seems that Chattic incorrectly inferred from the physician's statement that the anticipated duration of the daughter's need for care was the anticipated date of Gienapp's return to work.
  • Harbor Crest is not entitled to summary judgment on the premise that Gienapp did not provide essential information.
Harbor Crest also argued in the alternative that Gienapp did not qualify for any FMLA leave. The Seventh Circuit found that:
  • Gienapp's daughter does fall under the statutory definition of daughter found in Section 2611(12) of the FMLA law because:
    • she is Gienapp's biological child;
    • although she is over 18 years of age, she is "incapable of self-care because of a.... physical disability."
  • Although Gienapp's daughter is married and therefore Gienapp is no longer standing "in loco parentis," this does not make her any less Gienapp's biological child under the statutory definition. Section 2611(12) requires that a son or daughter be either biological, adopted, a foster child, a stepchild, a legal ward OR a child of a person standing in loco parentis. The child only needs to satisfy one of these possibilities not all of them.
  • Just as it was inappropriate to restrict the FMLA's definition of "care" by selective omission of statutory terms in Ballard v. Chicago Park District, 741 F.3d 838 (7th Cir. 2014), it is no more appropriate to limit the FMLA's definition of son or daughter.
Harbor Crest also argued that Gienapp did not provide "care" for her daughter at all, contending that her daughter's physicians and husband provided the care, and Gienapp only cared for her grandchildren. Since the FMLA does not provide for care of grandchildren, Harbor Crest declares that Gienapp's argument fails. The Seventh Circuit found that:
  • The statute does not require a caregiver to be the primary caregiver. Further, under Ballard, the court cannot add the word "primary."
  • Harbor Crest's argument that Gienapp provided care exclusively for her grandchildren does have a statutory basis but does not have any basis in undisputed fact. Gienapp's position is that she provided care for both her child and her grandchildren, and that position cannot be rejected on summary judgment. The argument that taking care of the grandchildren supplied care to the daughter herself also cannot be rejected on summary judgment as it depends on what exactly Gienapp did and whether her care of the grandchildren benefitted the daughter's health.
The Seventh Circuit identified three material disputes of fact preventing summary judgment, namely whether:
  • Harbor Crest asked Gienapp before hiring her replacement for her estimated return to work date.
  • Gienapp ever told Harbor Crest she would not return on or before April 1.
  • Gienapp provided care for her daughter as well as for her grandchildren.
The Seventh Circuit then found that:
  • The first and second material disputes were put to rest by Harbor Crest's appellate brief, which disregards any telephone conversations between Gienapp and Chattic regarding duration of leave and states that the only information provided to Chattic regarding duration was the verification form. Therefore, Harbor Crest waived on appeal any contention that Gienapp told Chattic at any time that she would not return by the April 1 deadline.
  • Harbor Crest conceded in district court that Gienapp provided some care to her daughter and accepted her position that while caring for her daughter she also found herself in a position to care for her grandchildren. The FMLA does not treat care of grandchildren as disqualifying if the employee also cares for an eligible relative.
  • A combination of care of the eligible daughter and the grandchildren does qualify as "care" under Section 825.116 of the FMLA. In Ballard, the court held that care includes both psychological and physical assistance to a covered family member.
  • Harbor Crest's concession in district court that Gienapp provided some care to her daughter as well as to her grandchildren means that its only argument must be that devoting any time to the care of grandchildren disqualifies the caregiver from FMLA leave. This is wrong.
The Seventh Circuit reversed the judgment of the district court, holding that no material disputes of fact remain and Gienapp is entitled to summary judgment.

Practical Implications

This decision is sympathetic to the employee, providing flexibility in both duration of leave when such leave is unforeseeable and in activities undertaken while on leave. To avoid litigation, employers should accept that for certain medical conditions, employees may be unable to provide a firm return date. In this case, employers would have to wait until the outer limit of the leave has passed before replacing the employee. Employers are also advised that employees on leave to care for a covered family member may find themselves having to engage in supplemental activities which may not be covered (for example caring for grandchildren). This combination of covered and non-covered activity however will not disqualify the leave from FMLA coverage.