We recently received a great, and increasingly more common, question via our Ask the Expert service on HR.BLR.com®:
We have an employee requesting FMLA leave to help with the care of her disabled brother, who is undergoing dialysis. Based on the law, it does not appear that a brother is a qualifying relationship for FMLA leave. Is this correct?
When considering eligibility for leave to care for a family member’s serious health condition under the federal Family and Medical Leave Act (FMLA), once an employer has determined whether an individual employee is eligible for leave, often the next step is determining whether the family member is also covered.
Covered Family Members—as Defined
As drafted, the FMLA requires covered employers to grant eligible employees up to 12 weeks of job-protected, unpaid leave for certain qualifying circumstances, including “care for the employee’s spouse, son, daughter, or parent with a serious health condition.” (CFR § 825.112 (a)(3)).
As our employer points out, there’s no mention of siblings (or grandparents, aunts, uncles, nieces, nephews, or other relations).
(Note: The FMLA provides additional leave entitlements for care of covered servicemembers with a serious injury or illness. This servicemember leave is available not only to spouses, children, and parents of the covered servicemember, but also to the next of kin. In this article, we will solely be focusing on the nonmilitary FMLA leaves.)
But is there a catch? After all, even when a law, as written, seems quite clear, we are well aware that actual application of black and white laws and regulations to grey-area, real-life situations and family structures is often anything but neat and tidy.
So Where Is the Loophole?
In recent years, HR practitioners (and, by extension, employment lawyers) have received an increasing number of requests for leave (or guidance on that leave) to care for family members who don’t seem to fit into the “spouse, son, daughter, or parent” roles.
When applied to parental relationships—i.e., “son, daughter, and parent”—the FMLA considers the complex reality of what it means to be “family.” Here, the law certainly includes, but is not limited to, the biological and legal relationships of parent and child.
The law also considers individuals who demonstrate a factual relationship, or one known as in loco parentis. In loco parentis status arises when a person—any person—has assumed day-to-day obligations comparable to those of a parent, but without going through the formalities necessary to establish legal adoption.
There is no specific test or set of duties, responsibilities, or factors that will definitively establish an in loco parentis relationship. Examples may include provision of financial support; daily caregiving; and providing food, clothing, shelter, health insurance, transportation to and from school, and medical needs, etc., but any one—or even all—of these factors will not necessarily be present or absent in an in loco parentis relationship.
There is even some difference in opinion between the drafted FMLA regulations and the Department of Labor’s (DOL) interpretation as to whether an in loco parentis relationship requires both financial support and care, or whether one or the other is sufficient. At any rate, establishment of such a relationship is a highly factual exercise.
Courts have indicated that some consistent factors that can be considered when determining in loco parentis status may include the age of the “child,” the degree to which the “child” is dependent on the person, the amount of financial support, if any, and the extent to which duties commonly associated with parenthood are exercised.
Further, the DOL has stated that the key in finding such a relationship is in the intention of the person standing in loco parentis and whether that person intended to assume a parental status toward the “child” in question. The DOL provides additional information on in loco parentis rights in its Fact Sheet 28B.
To make a long story short … a sibling could be a covered family member if—and that can be a big if—an in loco parentis relationship exists between the sibling and the covered employee.
So, considering our factual situation at hand:
- If the brother requiring care is a child, our employee could be entitled to leave for her brother’s care if the employee has assumed a parental relationship with respect to her brother.
- Alternatively, even if the brother requiring care is an adult, the employee could still be entitled to leave if the brother requiring care also fulfills the requirements for adult “son or daughter” care—i.e., the brother is incapable of self-care because of a mental or physical disability—and the employee stands in loco parentis to him.
- Finally, don’t forget situations in which the brother requiring care may be the one who established the in loco parentis In other words, if the brother stood as parent to the employee while the employee was a child, then the employee may be entitled to leave to care for her brother as her in loco parent.
Even When the Answer Is “Probably No,” Be Sure to Ask
So, if the “if” is just that—a big if—why is this technicality important for employers to get right?
In a recent 2nd circuit case, Coutard v. Mun. Credit Union (No. 15-1113 (Feb. 9, 2017)), an employer denied an employee’s request for FMLA leave to care for his grandfather. After all, reasoned the employer, the FMLA doesn’t provide leave to care for grandparents.
However, it happened that this particular employee’s relationship with his grandfather may have qualified as one of those in loco parentis relationships. Unfortunately, the employer failed to gather enough information to determine whether this special circumstance applied, and the employee was discharged for his absences related to the grandfather’s care. This has led the employer to have to defend its actions in court.
The court in Coutard pointed out that family situations such as these—a grandfather raising a grandson, for example—are hardly “unique,” noting that the very reason the in loco parentis relationship is included in the FMLA is to “reflect the reality that many children in the United States today do not live in traditional ‘nuclear’ families … and are increasingly raised by others.”
So, keep in mind that, once the employee has provided sufficient information to suggest that a request might fall under the FMLA, then it is up to the employer to request additional information to resolve questions such as whether a covered family relationship, including a potential in loco parentis relationship, exists. When possible in loco parentis relationships arise, employers are entitled to request reasonable documentation of that family relationship.
Don’t Forget State Laws
Even once you have determined that an in loco parentis relationship does not exist, don’t forget that some state and local laws also go beyond the FMLA definitions, providing leave entitlements for care of domestic partners, grandparents, parents-in-law, and other relatives. So be sure to check for additional protection in your state of operation.
Remember, The FMLA Is a Floor, Not a Ceiling
Finally, remember that the FMLA provides for minimum leave entitlements. If an employee’s sibling (or other family member) is not covered by the letter of state or federal law, this means that the decision to provide leave is at the employer’s discretion. In some circumstances, employers may still wish to provide some form of leave, flexible scheduling, or other accommodation to allow workers to balance the needs of their families and their workplaces.
Just keep in mind that if you do permit lenience for employees whose leave situations don’t neatly fall within the requirements of state and federal law, then you may need to allow this same lenience for similarly-situated employees in the future.
Therefore, be certain to retain thorough documentation of what you grant these employees—duration of leave, interaction with other forms of leave, restoration rights, and other details—so that you can maintain consistent policy application when and if other workers have similar requests in the future.
|Stay up-to-date on all the latest leave trends when you join Stacie Caraway of Miller & Martin PLLC and Susan Fentin of Skoler, Abbott & Presser, P.C. as they copresent the breakout session—“Absence Management in the Compliance ‘Bermuda Triangle’: FMLA’s Intersection with Disability Accommodation, Workers’ Compensation, and Paid Time Off”—at the 22nd Annual Advanced Employment Issues Symposium (AEIS), being held at the Paris Hotel in Las Vegas, November 15-17. Click here to learn more, or to register today.|
|Holly K. Jones, JD is a Senior Legal Editor for BLR’s human resources and employment law publications. She understands the existing and emerging needs and challenges of human resources professionals thanks to several years of experience managing, writing, and editing key legal and compliance publications for BLR. Prior to joining BLR, Ms. Jones worked for the Tennessee Legislature’s Office of Legal Services.
She graduated magna cum laude and Phi Beta Kappa with a BA in English Rhetoric and Writing, Political Science, and Psychology from the University of Tennessee in Knoxville, Tennessee, where she also received a 2001 Citation for Extraordinary Academic Achievement. She received her law degree from Vanderbilt University Law School and is licensed to practice law in Tennessee.
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