The FMLA allows up to 12 weeks of unpaid leave to take care of family members with serious medical conditions. Most of us know that already. “Family members” under the FMLA include parents, children, and spouses. You probably knew that, too. It therefore follows that you can’t get time off under the FMLA to take care of your aunt, or your sibling, right? Well….probably not, but maybe you can. Wait. What kind of answer is that? If the FMLA says that family members are parents, children and spouses, how is there even a question? Well, now you can guess there is one, because, there’s this entire post discussing it. Read on for more information…
(image from blog.capital.org)
While the FMLA limits its definition of family members to parent, child, or spouse, it also includes those who stand in loco parentis to either the employee or vice versa. In loco what??? In loco parentis, a Latin term, means “in the place of a parent”. In other words, a non-parent who has acted as a parent. Under these circumstances there need not be a biological or legal relationship.
Does that mean that your employee is automatically entitled to FMLA time to take care of her aunt, just because she says the aunt signed all her report cards in school? The United States District Court for the District of New Jersey, says “No”. In Fitzgerald v. Shore Memorial Hospital, 92 F. Supp. 3d 214 (D.N.J. 2015) an employee made such a request. The hospital approved the first request when the employee simply referred to the aunt as her “mother”. When the employee later admitted that the person was not her biological mother, and alternately referred to her as her “aunt” “mother” and “step-mother”, the hosptial requested more information about the relationship. While the employee offered to bring report cards from high school presumably signed by her aunt, that would show that the aunt had raised her, she never actually did so. The court, cited the FMLA regulations, specifically 29 CFR, Sec 825.303(b): ” Failure to respond to reasonable employer inquiries regarding the leave request may result in denial of FMLA protection if the employer is unable to determine whether the leave is FMLA-qualifying.” (In the interest of full disclosure, there were other issues in this case, involving FMLA time for the employee’s own health issues. You can access the full opinion here to read about that.)
So, you can request supporting documentation of an employee’s relationship with a relative, but can you simply ask for “more information” without specifying what would be sufficient? The Second Circuit Court of Appeals said “No” this past February in Coutard v. Municipal Credit Union, 848 F.3d 102. The employee here requested FMLA leave time to take care of his grandfather. The employee did not tell the credit union about the in loco parentis relationship, and the credit union never told the employee that an in loco parentis relationship could entitle him to FMLA leave time. It simply responded that he was not entitled to FMLA leave time to take care of a grandparent. The court ruled that the credit union, “as an employer covered by the FMLA had an obligation to specify any additional information that it needed in order to determine whether plaintiff was entitled to such leave.” The court cited the FMLA regulations, which specifically say that
“When an employee seeks leave for the first time for a FMLA-qualifying reason, the employee need not expressly assert rights under the FMLA or even mention the FMLA. . . . The employer will be expected to obtain any additional required information through informal means.”
The court also noted that “Coutard was raised by his maternal grandfather, Jean Manesson Dumond, after his biological father passed away before Coutard’s fourth birthday. Dumond acted in all respects as [Coutard’s] father–feeding him, clothing him, paying for his education, taking him to school, providing emotional and social support. In fact, Dumond referred to Coutard as his son.” These were undisputed facts. The court rejected the credit union’s argument that Mr. Coutard was obligated to provide sufficient information as to his relationship with his grandfather, and it was under no obligation to inform Mr. Coutard that his leave may be covered.
So here’s the bottom line: If an employee asks for FMLA leave to care for a relative that does not seem to be covered, don’t automatically deny the request. Ask about the relationship. You can request information. Just make sure that you are clear on what you need. For example, you can say that normally the FMLA does not provide time off to care for an aunt, unless the aunt essentially acted as a parent. You can then ask whether the employee can provide information that would tend to show that the aunt functioned as a parent. You can also read the DOL’s Administrative Interpretation defining in loco parentis relationships with respect to children, here. Finally, if you want to get a better handle on the intricacies of employee leave, you can register for my webinars on the overlap between FMLA, the ADA and Workers Comp, and Employee Leave Abuse.
OK, that’s all for now.
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
Are you a N.J. employer/business owner? Join the new LinkedIn group, New Jersey Business Litigation Forum, run by my friend and colleague, Gene Killian. Click here for more info.
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