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Caregiving Grandparent Gets Fired

FMLA does not go far enough to protect families

When June Cruz heard her daughter's distressed voice on the phone, she knew she had to go to her.

See also: Moving from surrogate dad to granddad?

Cruz's daughter, due to give birth any day, was overwhelmed. Her husband had broken his collarbone and was unable to help with anything in the house, including the couple's 2-year-old. He couldn't drive. Who would get her to the hospital once she went into labor? Who would coach her through childbirth?

"For her to call me up crying, that's not the norm for her," Cruz says. "She was freaking out. Her husband is needing her to help him take a bath, and she can't even take care of herself." All Cruz could think about was getting on a plane as soon as possible.

Cruz had already asked her boss at the Publix supermarket in Ocala, Fla., where she worked as a cake decorator, for two weeks off to fly to Colorado once the baby was born. But now she'd have to leave earlier than anticipated. Cruz believed that the time off — the two weeks she had been approved for, plus two more weeks she requested orally — would be covered under the Family and Medical Leave Act (FMLA). Two days later, she flew to Colorado. Four weeks later, after the baby was born and the family was managing on its own, Cruz called her manager at Publix to find out what her work schedule would be once she returned.

baby in briefcase – Grandparents babysit and lose their jobs

Taking care of your grandchild could get you fired from work. — Marc Carter/Getty Images

"They said, 'You've been terminated,' " Cruz says. "I'm like, 'I've been what?' They told me this didn't fall under family medical leave. And I didn't have a leg I could stand on."

Cruz filed suit against Publix, citing an unlawful denial of an FMLA claim. She lost the case, however, for several reasons. First, helping take care of grandchildren is not covered under the FMLA. Second, Cruz requested FMLA leave to take care of her daughter, but being uncomfortably pregnant is not a disability, and so Cruz's leave was not protected by FMLA. And the court held that Cruz did not follow proper procedures in requesting FMLA leave.

Cruz says she got oral confirmation from Publix headquarters that the extra time off would qualify under the FMLA. But this was all done by phone, and she had no written proof to back up her claims. Publix declined to comment for the story, stating that corporate policy prohibits discussing any specific employee matters.

This happened seven years ago. Cruz, now 55, was never able to find another cake decorating job. She's since moved to Colorado to live with her daughter. "Now I'm unemployed," Cruz says. Had she not been fired, "I would have more of a 401(k). Now that I'm getting close to retirement, I'm really worried about it."

Next: Not the only case of a grandparent fired or penalized. >>

A growing problem

This is hardly the only case of a grandparent fired or penalized at work for providing care related to her grandchildren, says Joan C. Williams, author of Reshaping the Work-Family Debate: Why Men and Class Matter. There are no firm statistics on such actions, but she cites cases where a grandfather was disciplined at work for refusing to work overtime because he had to pick up a grandchild from school, and numerous cases where grandparents were fired after taking off time to care for sick grandchildren. Considering that half of Americans ages 50 to 65 have grandchildren, according to the Pew Research Center (PDF), "calling in grandparent" is becoming more and more of an issue in the workplace, says Williams.

"Grandparents are very deeply involved with childcare at a time when many of them are still working," says Williams, founder and director of the Center for WorkLife Law at the University of California, Hastings College of the Law. "So, many grandparents have exactly the same kind of work-family conflict that parents have."

Donna Novak found herself in a similar predicament when her 18-year-old daughter developed postpartum depression after her son was born with severe jaundice.

"My daughter had just lost it," says Novak, 47. "They put her on psych medicine. They said that she was just going through a postpartum depression because the baby is ill. She kept saying, 'Mom, it's something I ate, it's something I did,' and I'm like, 'No it's not. Things just happen.' "

Novak requested FMLA leave to care for her daughter, whom she believed could not care for herself or a newborn. The request was denied and Novak was terminated by her employer, MetroHealth System in Cleveland, for exceeding her allowable leave and not reporting to work. MetroHealth maintains that Novak's firing was proper because her request did not meet the definition of FMLA leave, an argument supported by the courts. "The FMLA does not entitle an employee to leave in order to care for a grandchild," reads the ruling in the lawsuit Novak filed against MetroHealth. "We conclude that [Novak's daughter's] postpartum depression did not constitute a 'disability,' as that term is defined under the FMLA, and therefore the FMLA did not authorize Novak's leave to care for her."

This is an example of why the FMLA does not go far enough to protect families, says Williams.

"What would we think of a mother who felt her grandchild was at risk because the daughter was so depressed? What would we think of the grandmother if the grandmother didn't go?" says Williams. "That's what's so shocking about these situations. We would think this woman doesn't have her head screwed on straight."

Next: Understanding your rights. >>

Novak, who was never able to find steady employment after the firing, is attempting a career change: She's in nursing school.

"If I had to do it all over again I would do it the same way," she says. "But what I wish is that I had known that the FMLA doesn't cover grandparents or daughters who are over 18."

Understanding your rights

Confusion over the law is a big part of the problem, says Ellen Bravo, executive director of the Family Values @ Work consortium. "There are two sides to this," she says. "One is the rights people have that they don't know they have, and [the other is] how to educate both employers and workers on what these are."

Grandparents can be protected under the FMLA if they are acting in loco parentis, which means you are responsible for the day-to-day responsibilities to care for and financially support the child, even if you are not a legal guardian, says Sharyn Tejani, director of workplace fairness at the National Partnership for Women and Families.

Also, Oregon, Hawaii and the District of Columbia have more generous FMLA policies that specifically cover grandparents caring for grandchildren. In addition, Maine, Oregon, Hawaii, Rhode Island, Vermont and the District of Columbia have laws that would make it easier to care for an adult child in situations such as after the birth of a child.

Be prepared

If you find yourself needing time off to care for a grandchild, Tejani recommends talking with your supervisor to find out what your employer's policies are regarding FMLA leave.

"Find out what timelines they have, what deadlines they have," Tejani says. "You might have to do things like hand in a certification form, hand in a medical form. If you can't meet those deadlines, you have to keep your employer apprised of your efforts to meet those deadlines."

If an emergency occurs, inform your employer as soon as possible of your need for time off. "You've got a million things on your plate, and the last thing you're thinking of is pulling yourself together and calling work," says Tejani. "But communication is absolutely key."

You also have to ensure that your employer offers FMLA leave — only companies with more than 50 employees have to — and that you're entitled to it. The federal guidelines state that you need to have worked for the company for at least a year, and worked at least 1,250 hours in the last year, to qualify.

Next: More family-friendly policies on the horizon? >>

More family-friendly policies on the horizon?

But the FMLA is just one piece of the puzzle, and workplace advocates like Williams and Bravo say more must be done. The FMLA only provides for unpaid leave, so even if you need leave, you might not be able to afford to take it. And the FMLA is too restrictive, says Bravo.

"The definition of family needs to be brought into the 21st century," she says. "People in this country care a lot about family, and when they say family, they don't just mean the nuclear family. With people living longer, and with more and more folks in the workforce, we just have to align workplace practices with real family."

And companies in general need to become more family friendly, Williams says. The FMLA covers medical emergencies, but there are grandparents who simply need time off to help with child care or to bond with a newborn grandchild. The Family Values @ Work consortium advocates rules that allow all employees to have greater control over their work schedules so they better fit with caregiving needs.

"It just seems absolutely unbelievable that one of the richest countries in the world can't afford to have a grandmother attend to her daughter while she's having a baby," Williams says.

Most corporate work-life policies are drafted with the young family in mind, Williams says, but there are some companies creating policies that give employees more flexibility. For example, Bank of America allows employees to work compressed workweeks (40 hours in four days, for example), work from home and work flexible hours. It also offers benefits to part-time employees working at least 20 hours a week, which Williams says is particularly enticing to older workers who need the income but also need to pick up grandkids from school each day.

"Americans very often have to choose between their economic security and their family responsibilities," Williams says. "It's a profoundly troubling scenario."

Cynthia Ramnarace writes about health, caregiving and older adult topics. She lives in Rockaway Beach, N.Y.

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