Employers who are familiar with the Family and Medical Leave Act are well aware that employees can use FMLA leave to care for their child, spouse, or parent with a serious health condition. But not all employers are aware that, under the FMLA, “parent” is interpreted broadly to include not only biological, adoptive, step, and foster parents, but also any individual who stood in loco parentis to the employee when the employee was a child. Some employers are aware of this definition, but assume that it is the employee’s responsibility to inform the employer if he or she had an in loco parentis relationship to a family member now in need of care. Recently, one employer learned the hard way that, in fact, it is the employer’s obligation to find out, when an employee requests FMLA leave to care for a family member, whether the family member stood in loco parentis to the employee.
The Second Circuit Court of Appeals held in February that, where an employer had denied an employee’s request for leave to care for his sick grandfather, the employer should have first asked the employee if the grandfather had ever stood in loco parentis to him. (Coutard v. Mun. Credit Union, 2017 U.S. App. LEXIS 2322, *13 (2d Cir. 2017)).
In Coutard, the employee had asked for FMLA leave to care for his grandfather, who had a serious health condition. The employer denied the request on the grounds that FMLA does not apply to time off to care for a grandparent. The employee took time off to care for his grandfather anyway, and the employer fired him for his unexcused absence.
The employee had not mentioned to the employer that his grandfather had raised him from the ages of 3 to 14. Due to this relationship, the employee’s grandfather met the definition of an individual who stood in loco parentis to the employee when he was under 18. The employee sued, and the lower court found in favor of the employer, ruling that it had not been obligated to ask the employee whether his grandfather had ever stood in loco parentis to him.
The appellate court, however, reversed this decision, holding that it was in fact incumbent upon the employer to request additional information from the employee. In other words, before denying the leave request on the grounds that the seriously ill family member was a grandparent, not a parent, the employer should have followed up with the employee to ensure it had all the relevant information. Had it done so, the employer would have learned about the in loco parentis relationship and would have been obligated to grant the FMLA leave request.
There are two key takeaways here. The first is that, if there is any possible basis to believe that a family member with a serious health condition fits into any of the categories of family members covered under FMLA, it is the employer’s burden to dig deeper and get all the relevant information. FMLA requests should not be treated as an exercise where employees simply check some boxes and the request is granted or denied. Employers must take a thoughtful, careful approach to these requests, bearing in mind that not every family fits into traditional ideas of what a family looks like.
The second takeaway is that any employer who is considering (a) denying an FMLA leave request or (b) taking adverse action (such as termination) against an employee who has previously requested or taken FMLA leave should always consult with counsel first. Employers who try to navigate the rocky waters of FMLA law alone do so at their own peril, as the employer in Coutard no doubt learned.
If you have questions about FMLA, please contact one of the HR professionals at PMP, who, if needed, can connect you with one of PMP’s affiliated employment attorneys.
Portnoy, Messinger, Pearl & Associates, Inc. is here to answer any questions you have regarding this matter. Please keep in mind that in addition to our staff of seasoned HR professionals, we also have affiliated employment lawyers on hand to address any questions you may have regarding compliance. Contact us at 800-921-2195 or 516-921-3400. You can also visit our website http://www.pmphr.com/ or e-mail us at info@pmpHR.com.
This article is intended for general information only and should not be construed as legal advice.
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