Have you ever had an employee ask to take leave under the Family and Medical Leave Act to help a child who is having a baby? Or to care for a beloved aunt who is terminally ill? The FMLA requires that employers give eligible employees twelve weeks of job-protected leave each year for a qualifying reason. One of those reasons is to care for a spouse, parent or child with a serious health condition. Does that mean that employees are not entitled to FMLA leave for the birth of a grandchild or to care for Aunt Sue? Probably, but maybe not. Maybe your employee will stand in loco parentis with the new baby. Maybe Aunt Sue stood in loco parentis to your employee when they are a child.

Background

In an earlier blog post, I discussed the FMLA’s definitions of “spouse,” “son or daughter,” and “parent.” It is crucial that an employer understand the FMLA’s definitions of these terms to be able to respond when an employee asks for FMLA leave to care for a family member with a serious health condition (for a discussion of the meaning of the term serious health condition, see here). Under the FMLA,

See here at subsection (c).

The Definition of In Loco Parentis for FMLA Purposes

For many employers and employees, the term in loco parentis may be a new one. In loco parentis is a legal term derived from the Latin phrase meaning “in the place of a parent.” The FMLA regulations define in loco parentis this way:

Persons who are “in loco parentis” include those with day-to-day responsibilities to care for and financially support a child . . . . A biological or legal relationship is not necessary. (emphasis added)

See here at subsection (d)(3).

It can be difficult for an employer to determine whether an employee stands in loco parentis to a child. Equally difficult is determining whether an older adult stood in loco parentis to an employee when the employee was a child. The regulations require employers to rely on a written statement from the employee affirming an in loco parentis relationship, but that presumes that both employer and employee understand that the person standing in loco parentis intends to assume the role of parent in place of the child’s biological or legal parent and to provide day-to-day care and financial support of the child. Case law makes clear that as part of or in addition to a written statement, the employee must provide the employer with sufficient facts indicating that such a relationship may exist. See here and here. See also Sherrod v. Philadelphia Gas Works, 57 Fed.Appx. 68, 72–73 (3d Cir.2003).

How the Courts Analyze In Loco Parentis for FMLA Purposes

In determining whether an adult stands in loco parentis to a child, courts focus on the intention of the adult to assume the status of a parent toward the child. A person may assume the care and custody of another’s child (including of their own grandchild) under circumstances that are consistent with the continued existence of the relationship between the actual parent and the child and without any intention to end that relationship. In a Maryland case, the court said that the intent to assume the status of parent can be inferred from the acts of the parties, the age of the child, the degree to which the child is dependent on the employee claiming to be standing in loco parentis, the amount of financial support, if any, the employee provides, and the extent to which the employee exercises the duties commonly associated with parenthood.

A Hypothetical

Sometimes, however, it is not clear whether a relationship is one of in loco parentis for FMLA purposes. Consider the following hypothetical:

Brittany, the single mother of a newborn baby lives with her parents. Brittany is a student and an Army Reservist. In addition to housing, Brittany receives substantial financial support from her parents, who also pay for food and for health insurance. Brittany’s father Martin plays a significant role caring for the baby. He helps care for the baby when Brittany is home and takes on sole responsibility when Brittany is at school or participating in Army Reserve activities. Brittany is called to active duty and is told that she will be deployed overseas. Martin requests FMLA leave from his employer to care for Brittany’s baby, saying that he stands in loco parentis to the child. Should Martin’s employer approve his FMLA leave?

Martin cannot take FMLA leave to care for the baby just because he is its grandfather. Grandparents are not entitled to take FMLA leave to care for their grandchildren, either to bond with them as newborns or because they have a serious health condition. But Martin can take FMLA leave to care for Brittany’s baby if he stands in loco parentis. Is this the nature of Martin’s relationship with the baby? Or is he requesting a leave to which he is not entitled?

On one hand, he is providing substantial financial support for the child and shares the day-to-day parenting duties with his daughter. In his daughter’s absence, he will assume all those duties. Yet he does not mean to supplant his daughter and there is no suggestion that she will not resume her role as the baby’s mother when her deployment concludes. So, what if her deployment lasts for a substantial period of time – one year, three years, even five years? Will Martin not be acting in the place of a parent during that time? One might even argue that he is acting in loco parentis while Brittany is home in that he plays the role of the baby’s father. There are no easy answers here.

The facts of this hypothetical are drawn from an 11^th Circuit case, where the court denied a motion for summary judgment because the facts did not support a finding one way or the other as to whether, as a matter of law, Martin stood in loco parentis. There were facts that suggested an in loco parentis relationship and facts that did not. The court found that the case needed to be decided by a jury. As the holding in this real case suggests, determining whether an in loco parentis relationship exists is difficult. It may be the most difficult determination for an deciding whether an employee is entitled to FMLA leave.