I thought if an employee wants to take FMLA leave to care for a child they have to show proof of guardianship, but now I’m hearing that’s not necessarily the case because of “in loco parentis”… what does this mean?
When an employee requests FMLA leave to care for a family member who is obviously not their child or parent, an initial reaction would be for the employer to deny the request. However, under the FMLA, the U.S. Department of Labor Wage and Hour Division definition of “parent” and “son or daughter” includes any other individual who stands in loco parentis (“in the place of a parent”) to the employee or child. In these cases a legal or biological relationship is not required. Failing to recognize the in loco parentis relationship could result in an FMLA interference claim.
Employers should act diligently when an employee requests FMLA leave to care for an individual who is not obviously a parent or child, and should explore whether an in loco parentis relationship exists. An employer may require an employee to provide reasonable documentation or a statement of the family relationship. Employers should keep in mind that a simple statement asserting that the requisite family relationship exists is all that is needed for in loco parentis situations where there is no legal or biological relationship.
The FMLA regulations define in loco parentis as including persons with day-to-day responsibilities to care for or financially support a child. Courts have indicated some factors that determine in loco parentis status include:
- the age of the child;
- the degree to which the child is dependent on the person;
- the amount of support, if any, provided; and
- the extent to which duties commonly associated with parenthood are exercised.
An eligible employee is entitled to take FMLA leave to care for a person who provided such care to the employee when the employee was a child. If the individual stood in loco parentis to the employee when the employee was a child, the employee may be entitled to take FMLA leave even if he or she also has a biological, step, foster, or other parent, provided that the in loco parentis relationship existed between the employee and the individual when the employee met the FMLA’s definition of a “son or daughter.” Although no legal or biological relationship is necessary, grandparents or other relatives, such as siblings, may stand in loco parentis to a child under the FMLA as long as the relative satisfies the in loco parentis requirements.
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