Thursday, June 5, 2014

In Loco Who??

The FMLA and "in loco parentis"


Employers and the HR folks who work for them are constantly tested by the myriad of employment laws and regulations; new ones that are passed each year, as well as amendments to existing laws. The Family and Medical Leave Act (FMLA) is one such law that can be a challenge to administer and manage. Because the coverage is so broad (as was intended) and the guidance is sometimes rather vague, it’s not hard to miss some aspects of the law. The concept of "in loco parentis" is one that has tripped up plenty of folks.

For FMLA leave purposes, "parent" is defined broadly as a biological, adoptive, step, or foster parent, or an individual who stood in loco parentis to an employee when the employee was a child. See 29 C.F.R. § 825.122(b). (The FMLA military leave provisions have a specific definition of parent for purposes of servicemember caregiver leave. See 29 C.F.R. § 825.122(i).) Because we are so geared to look for the parent/spouse/child relationship, we miss that the law is broader than that and covers those who may have raised us instead of our biological parent, or those we may have raised in placed of a biological parent.

In loco parentis commonly refers to a relationship in which a person "stands in place of" a parent by taking on all the obligations of a parent to a child with whom he or she has no legal or biological connection. It exists when an individual intends to take on the role of a parent.

Under the FMLA, persons who are in loco parentis include those with day-to-day responsibilities to care for or provide financial support to a child. See the DOL’s Fact Sheet #28B. The courts have provided some factors to consider in determining in loco parentis status:

  • the age of the child;
  • the degree to which the child is dependent on the person;
  • the amount of financial support, if any, provided; and
  • the extent to which duties commonly associated with parenthood are exercised.
Likewise, an eligible employee is entitled to take FMLA leave to care for a person who stood in loco parentis to the employee when the employee was a child. The fact that the employee also has a biological, adoptive, step, or foster parent, does not change that determination. Unless the in loco parentis relationship existed when the employee was a child however, an employee is not entitled to take FMLA leave to care for a grandparent, an aunt, or another non-covered relative with a serious health condition. See DOL’s Fact Sheet #28C.

Some may feel that asking for documentation of such a relationship is difficult and are unsure as to what would be acceptable. An employer’s right to documentation of the family relationship is the same for an employee who states the need to care for an individual who stood in loco parentis as it is for a biological, adoptive, step, or foster parent. The documentation can be as simple as a statement asserting the relationship. Such a statement might include the name of the individual and a statement of the individual’s in loco parentis relationship to the employee when the employee was a child. The employee needs to provide sufficient information to make the employer aware that the individual in need of care stood in loco parentis to the employee when the employee was a "son or daughter."

It pays for HR pros and other people managers to review the requirements of such laws and regulations when faced with a decision that may not be as clear cut in the details as we first think. Just another day wading through the sometimes murky waters…….


 

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