FMLA and In Loco Parentis

by Curtis Graves, Esq., SPHR, SHRM-SCP

Bulletin,  Family and Medical Leave Act

Q: An employee has asked for time off under FMLA to take care of his grandmother. I know FMLA time off ordinarily applies only to an employee’s spouse, parent, or child, but our benefits person says he can take time off to care for his grandmother if she raised him. I can’t substantiate this either way. Please help.

A: You are correct that FMLA permits employees to take time off to care for parents, spouses, and children. However, these definitions can be pretty broad. While a parent can be a biological, adoptive, step, or foster father or mother, a parent can also be any individual who stood in loco parentis to the employee when the employee was either under age 18, or 18 or older and incapable of self-care because of a disability when FMLA leave was to commence.

In loco parentis means “in the place of a parent.” Persons who are “in loco parentis” include those with day-to-day responsibilities to care for or financially support a child, or who had such responsibility for your employee when your employee was a child. Neither a formal legal relationship nor even a familial relationship is necessary to satisfy this definition.

In your case, your employee’s grandmother stood in loco parentis to your employee and is therefore his “parent” for purposes of FMLA.

In these scenarios, an important component for your HR team to consider is whether an employee put you on notice about the existence of a potential in loco parentis relationship. For example, if an employee simply asked for time off to care for a grandparent, you could deny the request, because FMLA does not provide time off to care for grandparents. On the other hand, what if your employee conveyed additional information about his relationship with his grandmother? A statement such as, “She raised me” might trigger a duty on your part to probe for additional information about the relationship.

Should this situation ever arise, call us without delay.

Send your questions to cgraves@msec.org. Please tell us if you would prefer your identity not be mentioned in our answer.

About the author
Curtis Graves, Esq., SPHR, SHRM-SCP

Curtis is an employment law attorney and Employers Council's Information Resource Manager. Curtis specializes in legal issues surrounding drug use by employees, unemployment compensation, and corporate training. He regularly trains human resources professionals, managers, supervisors, and employees in legal issues involved with drugs, harassment, unemployment compensation, performance documentation, and civil rights. Curtis regularly represents members in administrative proceedings before the Equal Employment Opportunity Commission, the U.S. Department of Labor, and the Colorado Department of Labor and Employment.