Revisiting the in loco parentis relationship, and the Family Medical Leave Act
The Families First Coronavirus Response Act (“FFCRA”) has extended the FMLA to assist businesses by providing employees with paid leave, either for the employee’s own health needs or to care for family members. As leave requests increase due to COVID-19, employers must keep in mind the extended definitions of “parent” and “child”.
Generally, the FFRCA provides that covered employers must provide: two weeks of paid sick leave where the employee is unable to work because the employee is quarantined; or if the employee is unable to work because of a bona fide need to care for an individual subject to quarantine or care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19; and up to an additional 10 weeks of paid expanded family and medical leave where an employee is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.
Under the FMLA, an employee can seek leave to care for a spouse, daughter, son, or parent who has a serious health condition.This is not limited to biological or legal children and parents. An employee is entitled to leave to care for any child with whom the employee has an in loco parentis relationship. An employee can also stay home to take care of an elderly family member who acted in loco parentis to the employee when the employee was a child. “The term ‘in loco parentis,’ according to its generally accepted common law meaning, refers to a person who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary for legal adoption. It embodies the two ideas of assuming the parental status and discharging the parental duties.” Niewiadomski v. United States, 159 F.2d 683, 686 (6th Cir.1947).
When an employee seeks to invoke FMLA benefits based on an in loco parentis relationship, the employee must provide his employer with sufficient facts indicating that such a relationship may exist. See Sherrod v. Philadelphia Gas Works, 57 Fed.Appx. 68, 72–73 (3d Cir.2003) (“Since [the employee] did not initially tell her employer that her grandmother had raised her, she failed to sufficiently explain her reasons for the needed leave so as to allow the employer to determine that her request was covered by the FMLA.”). However, a failure to mention the nature of the relationship is not necessarily dispositive, and also depends on the facts. See Coutard v. Mun. Credit Union, 848 F.3d 102, 104 (2d Cir. 2017).
The hallmark of the in loco parentis relationship is the intentional assumption of obligations incidental to the parental relationship, especially support and maintenance, State v. Pittard, 45 N.C.App. 701, 263 S.E.2d 809 (Ct.App.). For example, an employee may request leave to take care of the child of an significant other. See Brehmer v. Xcel Energy, Inc., No. 06–3294, 2008 WL 3166265, at *7 (D.Minn. Aug.4, 2008) (finding genuine issue of material fact on in loco parentis issue where employee helped his girlfriend’s son eat, dress, get ready for bed, took child to doctor appointments and to school, went to child’s softball games, and contributed more than half of child’s financial support).
Factors to be considered include: the age of the child; amount of dependence, extent of financial support provided, and whether duties commonly associated with parenthood are exercised. See Megonnell v. Infotech Sols., Inc., No. CIV.A. 1:07-CV-02339, 2009 WL 3857451, at *9–10 (M.D. Pa. Nov. 18, 2009) (citing, Dillon, 382 F.Supp.2d at 787. The specific facts of each situation will determine whether an employee stands in loco parentis to a child.Therefore, once litigation is initiated, many jurisdictions have adopted the rule that whether someone is acting in loco parentis is a factual inquiry, suitable for resolution at trial. See 59 Am.Jur.2d, Parent and Child, § 88 (1971).
The employer’s right to documentation of the family relationship is the same for an individual who asserts an in loco parentis relationship as it is for a biological, adoptive, foster, or step parent. Although for purposes of litigation a court will consider the factors described above to determine whether an in loco parentis relationship did in fact exist when leave was requested, the FMLA generally does not require an employee to provide such fact intensive information to be entitled to leave. An employee need only provide sufficient information to make the employer aware of the in loco parentis relationship. See Department of Labor Fact Sheet #28B and Fact Sheet #28C.
Commonly Asked Questions
1. Can an in loco parentis relationship exist where a parent also resides in the household?
Yes. The fact that a child has a biological parent in the home, or has both a mother and a father, does not prevent an employee from standing in loco parentis to that child. The FMLA does not restrict the number of parents a child may have. See Martin v. Brevard Cty. Pub. Sch., 543 F.3d 1261, 1265–66 (11th Cir. 2008).
2. Does an employer have to tell an employee of their rights?
Yes, for example, an employee met the eligibility requirements for FMLA leave and requested that leave expressly to care for his seriously ill grandfather. The employer had an obligation to specify the information needed to determine whether the employee was entitled to leave. See Coutard v. Mun. Credit Union, 848 F.3d 102, 104 (2d Cir. 2017). The employer’s duties do not arise until the employee gives sufficient information to show that he may be in need of FMLA leave. See Wierman v. Cases’s General Stores, 638 F.3d 984, 1000 (8th Cir. 2011). However, an employee need not mention FMLA by name.
3. Can an employee take leave to care for an individual who acted in loco parentis to the employee?
Yes. FMLA leave may be taken to provide care for any individual who is the employee’s “parent” as the term is defined in the statute and its regulations. See 29 USC 2611(7). For FMLA leave purposes, a “parent” is defined broadly as the biological, adoptive, step, or foster parent of an employee or an individual who stood in loco parentis to the employee when the employee was a son or daughter. See 29 C.F.R. § 825.122.
4. Can an in loco parentis relationship attach to a non-relative.
Yes, a boyfriend or girlfriend of a parent could stand in loco parentis with a partner’s child. See Brehmer v. Xcel Energy, Inc., No. 06–3294, 2008 WL 3166265, at *7 (D.Minn. Aug.4, 2008). A biological or legal relationship is not necessary. See 29 C.F.R. § 825.113(c)(3).
5. Can employers request documentation?
Yes. The employer’s right to documentation of family relationship is the same for an individual who asserts an in loco parentis relationship as it is for a biological, adoptive, foster or step parent. Such documentation may take the form of a simple statement asserting the relationship. For an individual who stands in loco parentis to a child, such statement may include, for example, the name of the child and a statement of the employee’s in loco parentis relationship to the child. An employee should provide sufficient information to make the employer aware of the relationship. For a “parent” an employee should provide sufficient information to make the employer aware of how the individual in need of care stood in loco parentis to the employee when the employee was a “son or daughter.” Under the FFCRA, if an employee requests leave to care for his or her child whose school or place of care is closed, or child care provider is unavailable, the employer should document: the name of the child being cared for; the name of the school, place of care, or child care provider that has closed or become unavailable; and a statement from the employee that no other suitable person is available to care for the child.
The contents of this bulletin are intended to convey general information only and not to provide legal advice or opinions. The contents of this bulletin, and the information herein, should not be construed as, and should not be relied upon for legal advice in any particular circumstance or fact situation. You should consult a competent attorney for advice regarding your individual facts.