FMLA in loco parentis doesn’t extend to caring for healthy niece and nephew

While employees may take FMLA leave to stand in as a parent to a child, the child still needs to have a serious health condition or be newly born or placed

Posted February 3, 2020

For all you employers who struggle with the in loco parentis provision of the Family and Medical Leave Act (FMLA), a recent court decision might help provide some clarity.

Case in point

It was July 2018 when Chester requested intermittent FMLA leave to be a caretaker for his terminally ill sister. He used about one day of FMLA leave every two weeks. From there, things took an interesting twist. In May 2019 Chester was denied a promotion. The employer pointed to his inability to come to work contributed to its decision not to promote him. Chester emailed the employer to confirm its reasoning, specifically citing FMLA leave as the reason behind the promotion denial, but the employer did not respond.

About a month later, Chester received a negative rating in a monthly performance review. Jennie, the company Development Manager, stated that Chester’s spotty attendance factored into his negative rating. A month or so passed, and Chester renewed his intermittent FMLA leave.

About five days later, Chester was terminated for allegedly violating company policy unrelated to his leave. Chester sued, arguing that he was really terminated for his FMLA leave. As part of his argument, Chester alleged that his leave was classified under the FMLA as “In Loco Parentis,” to care for his niece and nephew because of his sister’s serious medical condition.

Wait a minute … this employee was taking care of his niece and nephew, who, according to Chester did not have a serious health condition; his sister had the condition. How does that work?

According to the court, that doesn’t work.

Even if Chester was standing in as a parent to his niece and nephew, they were fine. They did not have a condition that required his care. Chester didn’t indicate that he needed leave to care for his sister. Even if he did, the FMLA doesn’t generally entitle employees to leave to care for a sibling.

The court found in favor of the employer.

The in loco parentis provisions entitles eligible employees to up to 12 weeks of job-protected FMLA leave for the birth of a child, the placement of a child through adoption or foster care, or to care for a child with a serious health condition. Chester’s “children” didn’t have a condition; apparently, he was babysitting for his sister. While a noble act, it did not qualify for FMLA protections.

Brede v. Apple Computer Inc., Northern District of Ohio, No. 1:19-cv-2130, January 23, 2020.

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc.

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