Published on October 25th, 2016 by Alan L. Sklover
“My grandmother started walking five miles a day when she was sixty.
She’s ninety-seven now, and we don’t know where the heck she is.”
– Ellen DeGeneres
ACTUAL CASE HISTORY: Just recently, in the course of representing a client, I carefully reviewed the Family and Medical Leave Act (“FMLA”) law and its regulations. When I did, I learned something that I did not know, but wish I had known: Under the federal FMLA regulations, the definition of “parent” includes any person who acted in the place of your parent when you were a minor, even if they were not related to you in any way.
When I learned this startling fact, I was able to assist my client in establishing that his employer had clearly violated the FMLA law when it refused him a FMLA leave of absence to assist his ailing uncle who was suffering from Alzheimer’s Disease. On the basis of this “discovery,” my client was able to “be there” for the uncle who “was there” for him after his own parents had been taken from him as the result of a fatal car wreck when he was just a teenager.
I hope this “discovery” is helpful to you, or someone you know, if and when you need to be an “angel” to someone who once was an “angel” for you.
LESSON TO LEARN: The U.S. Family and Medical Leave Act (“FMLA”) entitles eligible employees to take up to 12 workweeks of job-protected unpaid leave to care for a spouse, son, daughter, or parent, with a serious health condition. It is a great law, because it permits employees up to 12 weeks off to care for family members, and at the same time guarantees their jobs when they return (with just a few narrow exceptions.)
In enacting the FMLA law, the U.S. Congress wisely recognized the changing nature of the American family. The Congress also recognized changes in the American population, including the growing number of elderly Americans and the growing need of employed persons to provide care both for their children and their parents.
For FMLA purposes, a “parent” is defined broadly, in keeping with the changing nature of the American family. A “parent” under FMLA includes the (i) biological, (ii) adoptive, (iii) step, or (iv) foster parent of an employee. Most interestingly, “parent” under FMLA also includes an individual who acted “in loco parentis” to the employee, when the employee was a minor.
“In loco parentis” is a Latin phrase that means “in the place of a parent.” It refers to the type of relationship in which a person has put themselves in the situation of a parent by voluntarily assuming and discharging the obligations of a parent to a child. It exists when an individual intends to take on the role of a parent. It does NOT require any pre-existing legal, biological or other relation.
WHAT YOU CAN DO: If you are in a quandary about needing time off work to care for a person who cared for you when you were a minor, it may be wise to bear in mind these five points:
1. What factors have Courts found to indicate that a person acted “in loco parentis” to another? Courts have indicated that these factors – among others – point very much to the conclusion that one person acted in loco parentis for another:
a. the age of the child at the time of the interaction (must have been a minor);
b. the degree to which the child was dependent upon the adult;
c. the amount of support, if any, the adult provided to the child; and
d. the extent to which the customary parental duties were exercised by the adult.
Thus, even a very helpful neighbor, entirely unrelated legally or biologically, can be considered a “parent” for FMLA leave purposes.
Consider using our Model Memo Requesting FMLA Information, Forms and Procedures from Human Resources. It shows you “What to Say and How to Say It”™ and makes a permanent record of your request. Just [click here.] Delivered Instantly By Email to Your Printer.
2. Does the fact that a person had a biological, step or foster parent at the same time preclude another person from being deemed an “in loco parentis” parent to the employee? No, a child can have both, even at the same time.
In one client’s situation, his mom spent a lot of time in the hospital when he was a youngster. His dad was usually busy working and when he was not working, his dad spent most of his time visiting his wife. For this reason, the client’s great aunt – his grandmother’s sister – moved into the home several times to help care for the client, his siblings and for the house. Even though the client’s dad was around, and he did have a mom who was hospitalized, his great aunt acted in loco parentis for him, and he was able to take a FMLA leave to care for her years later.
3. Can a person related to the employee in some capacity also be an in loco parentis “parent” under FMLA? Yes, a sibling, a grandparent, an uncle, an aunt or a cousin, just to name a few relatives, may have acted in loco parentis to that employee when he or she was child, and if so, would be considered a “parent” under FMLA. As examples:
a. An employee may take a FMLA leave of absence to care for his aunt with a serious health condition, if the aunt stood in loco parentis when the employee was a child;
b. An employee may take a FMLA leave of absence to care for her great-grandfather with a serious health condition, if the great-grandfather stood in loco parentis when the employee was a child; ‘
c. A “son or daughter” of a same-sex partnership may take a FMLA leave of absence to care for the non-adoptive or non-biological partner who stood in loco parentis.
FMLA Violation or Retaliation? Use our “Model Memo Complaint of FMLA Violation or Retaliation to HR.” Very effective. Shows you “What to Say and How to Say It”™ Jus [click here.] Delivered Instantly By Email to Your Printer.
4. What may be required to document an in loco parentis relationship? The employer’s right to request documentation of family relationship regarding an in loco parentis parent is no different that that required for an employee who asserts the need to care for an individual who is a biological, adoptive or step parent. Such documentation is limited to the employee’s simple statement asserting the relationship, which may include, for example, the name of the in loco parentis parent, and a statement that this person acted as a parent toward the employee while he or she was a child, and how the person acted as a parent.
5. Are any of FMLA’s other requirements or procedures different when applying for a leave to care for an in loco parentis parent? Simply put, no. In loco parentis status of a parent under FMLA does not change the law’s other requirements or procedures, such as those regarding coverage, eligibility and qualifying for FMLA leave.
P.S.: Get all three of our FMLA Model Memos for a discount: our “Ultimate FMLA Package”. Get your set at a 26% Discount! Just [click here.] Delivered by Email – Instantly!
In Sum . . .
FMLA is a very helpful federal law that permits people to take up to 12 weeks off, without pay, to assist in the care of immediate family. For FMLA purposes, a “parent” for whom you can take time of to care for includes people who took care of you when you were a minor, what we call in law in loco parentis, or “who stood in the place of a parent.”
And, too: If you would like to speak directly on FMLA issues, or other subjects, I am available for 30-minute, 60-minute, or 120-minute telephone consultations, just [click here.] Evenings and weekends can often be accommodated.
SkloverWorkingWisdom™ emphasizes smart negotiating – and navigating – for yourself at work. Negotiation and navigation of work and career issues requires that you think “out of the box,” and build value and avoid risks at every point in your career. We strive to help you understand what is commonly before you – traps and pitfalls, included – and to avoid the likely bumps in the road. For those needing to care for a person who cared for them when they were a minor, knowing the “in loco parentis” flexibility in FMLA may be of great assistance.
Always be proactive. Always be creative. Always be persistent. Always be vigilant. And always do what you can to achieve for yourself, your family, and your career. Take all available steps to increase and secure employment “rewards” and eliminate or reduce employment “risks.” Learning the “tricks of the trade” is what SkloverWorkingWisdom™ is all about.
*A note about our Actual Case Histories: In order to preserve client confidences, and protect client identities, we alter certain facts, including the name, age, gender, position, date, geographical location, and industry of our clients. The essential facts, the point illustrated and the lesson to be learned, remain actual.
Please Note: This Email Newsletter is not legal advice, but only an effort to provide generalized information about important topics related to employment and the law. Legal advice can only be rendered after formal retention of counsel, and must take into account the facts and circumstances of a particular case. Those in need of legal advice, counsel or representation should retain competent legal counsel licensed to practice law in their locale.
Sklover Working Wisdom™ is a trademarked newsletter publication of Alan L. Sklover, of Sklover & Company, LLC, a law firm dedicated to the counsel and representation of employees in matters of their employment, compensation and severance. Nothing expressed in this material constitutes legal advice. Please note that Mr. Sklover is admitted to practice in the state of New York, only. When assisting clients in other jurisdictions, he retains the assistance of local counsel and/or obtains permission of local Courts to appear. Copying, use and/or reproduction of this material in any form or media without prior written permission is strictly prohibited. All rights reserved. For further information, contact Sklover & Company, LLC, 45 Rockefeller Plaza, Suite 2000, New York, New York 10111 (212) 757-5000.
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