Who counts as a ‘family member’ under FMLA?
November 13, 2008 by Sam NarisiPosted in: FMLA, In this week's e-newsletter, Latest News & Views
A recent court ruling expands the list of reasons employees can take leave under FMLA.
The case involved an employee who lived with his daughter and granddaughter.
The daughter, a single mother, was both a student and a member of the Army Reserve. Given her busy schedule, the employee often took care of the child when her mother was at school or away during weekends for training.
The granddaughter became ill and needed care, and the employee asked for FMLA leave. He was turned down and sued.
The company tried to get the case thrown out, arguing that the employee wasn’t entitled to leave since the law lets employees take leave to care for their own children.
But the court let the suit proceed, saying the man acted “in loco parentis” — he performed the duties of a parent so he was entitled to leave as a parent would have been.
Who is a parent?
FMLA gives parents leave to care for their children, but how is the parent-child relationship defined? According to the law, “child” means “a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.”
According to the court, “in loco parentis” (literally, “in place of a parent”) refers to someone 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 to legal adoption.”
In this case, the employee met those requirements.
Cite: Martin v. Brevard County Public Schools
Tags: family member, FMLA, grandchild
November 19th, 2008 at 11:54 am
this is a joke. I guess I’ll leave today and go assume the role of a parent for my neighbors kid while they work all week.
November 19th, 2008 at 12:53 pm
Bob, if you don’t see the difference between fraudulently claiming to be acting as a parent for a strangers children and a grandparent who needs time to care for a sick grandchild he is helping to raise, then I don’t know what to tell you. I think it is too easy to see the employee as the enemy or trying to get one over on the company, but it is infinitely more rewarding to act with compassion when making decisions like this. How much cheaper would it have been for the company to simply give the guy the time off to care for his sick grandchild rather then having to go to court and eventually losing.
November 19th, 2008 at 1:06 pm
My reading of “in loco parentis” for a very similar situation found that the obligations of a parent are to be met and I hope the court found the requirements met and was not too loose in this. To be “in loco parentis” the obligations are to care for day-to-day and provide financial support of the child.
November 19th, 2008 at 1:29 pm
The company still has to avoid precedents, so I believe it did the right thing in challenging the employee. “In loco parentis” wasn’t established until the case began. If the guardian had presented evidence beforehand, this whole matter could have been avoided. Also, the courts increasingly side w/ employees in these types of cases.
November 19th, 2008 at 2:02 pm
This is not new!
In loco parentis has been the standard for at least a few years; I’d always assumed it came along with the original FMLA.
November 19th, 2008 at 3:20 pm
In reading the case, Martin did state that he “in loco parentis” when requesting the leave. FMLA was initially granted, but only through the end of his contract period. The way it sounds is that his contract wasn’t renewed because he was on FMLA leave since he couldn’t complete his performance improvement plan, so it’s a little more complicated than the article indicates. Also, his daughter was never deployed. While he was giving care to the granddaughter when the daughter was in school and when she was away for weekend Reserve duty, I would have thought his need for leave would have become intermittent. I didn’t see anything in the part I read that addressed this. I didn’t read through the entire file, but it sounds like the school wouldn’t have terminated Martin’s contract if he hadn’t been on FMLA leave, which would certainly be a violation of the Act. Again, without reading the whole file, but reading the first six pages, it sounds like the courts were pretty much right on this one.
December 2nd, 2008 at 1:33 pm
I am fortunate enough to work for a company that is small and we generally are able to work with employees even if the reason is not listed under FMLA. Because we are so generous, people generally do not abuse our time off policies. I do however feel for companies that have several hundred or even thousands of employees to keep track of this type of thing. It could cost a fortune and once you set that precedence, you better allow the rest of them to do it! I don’t blame the company for challenging it, but I also understand the court’s decision. It’s tough out here these days no matter how you do it!