“But she’s like a daughter to me!” Avoid this FMLA pitfall.




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As an employer, you are surely aware that the FMLA entitles an eligible employee to take up to 12 workweeks of job-protected leave to care for a son, daughter, or parent with a serious health condition.  So, when an employee requests to take FMLA leave to care for a family member who is not obviously a child or parent, the natural reaction is to deny the request.  Not so fast.  To avoid a potential FMLA interference claim, the Company will need to determine if there is an in loco parentis (Latin for “in the place of a parent”) relationship.  Under the FMLA, the definition of a “parent” includes an individual who stood in loco parentis and the definition of a “son or daughter” includes a child of a person standing in loco parentis.

The in loco parentis relationship exists when an individual intends to take on the role of a parent. The FMLA regulations define in loco parentis as including those with day-to-day responsibilities to care for and financially support a child.  29 C.F.R. § 825.122(c)(3).  Courts have enumerated factors to be considered in determining in loco parentis status; including the age of the child; the degree to which the child is dependent on the person claiming to be standing in loco parentis; the amount of support, if any, provided; and the extent to which duties commonly associated with parenthood are exercised.

Neither the FMLA nor regulations restrict the number of parents a child may have under the FMLA.  Therefore, the fact that a child has a biological parent at home does not prevent that child from being the “son or daughter” of an employee who does not have a biological or legal relationship with the child.  Similarly, the fact that an employee had a biological parent raise him or her when the employee was a child does not prevent another individual from also being a “parent.”  For example, an individual who co-parents a partner’s biological child and assumes responsibility for the child may stand in loco parentis.  Further examples of in locos parentis relationships could include an aunt, older sibling, or grandparent that assumed or assumes ongoing responsibility for raising a child.

An employer can request that an employee provide reasonable documentation of the qualifying family relationship, but the burden on the employee to provide documentation is quite low. An employee may satisfy the documentation request by providing a simple statement asserting that the requisite family relationship exists.

The important takeaway is that employers need to act carefully when an employee requests leave to care for an individual who is not obviously a parent or child.  Case in point, in matter of Coutard v. Municipal Credit Union, 848 F.3d 102 (2d Cir. 2017), the employer denied the employee’s FMLA leave request on the reasoning that the FMLA did not apply to grandparents.   The court held that the employee’s mere mention of the grandparent relationship when requesting FMLA was sufficient notice to the employer that FMLA might apply.  According to the court, the employer should have advised the employee regarding his right to seek FMLA leave based on an in loco parentis relationship and requested further information from the employee to determine if the grandparent stood in loco parentis.  To hopefully avoid such needless litigation, employers should review their FMLA leave request procedures to ensure that they are making proper inquiries when additional information may reveal that the FMLA could apply.

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