The Family and Medical Leave Act provides unpaid job-protected leave for a qualified employee to care for a spouse, parent, or child with a serious health condition. This means that FMLA protections do not extend to employee requests for leave to care for grandparents, adult sons or daughters, or collateral relatives. However, the FMLA contains a limited exception when the employee acts in a parental role ("in loco parentis" in Latin) for someone who is not their legal child. In most situations, this applies to a grandparent who has custody and has assumed parental responsibility for a minor grandchild. This week, the Sixth Circuit issued a decision that could significantly expand the concept of "in loco parentis" in the FMLA context.
In Chapman v. Brentlinger Enterprises, the plaintiff requested FMLA leave to care for her sister who was dying of terminal cancer. Her employer agreed to a modified schedule but allegedly fired her after missing a shift to care for her sister. She sued, alleging FMLA violations, but the district court dismissed the claims on the basis that the law did not grant leave to care for a sick sibling.
On appeal, the Sixth Circuit reversed this part of the decision, concluding that in appropriate situations, a sibling can stand "in loco parentis." The court rejected the employer’s argument that the parental relationship must begin while the relative is a minor. This relationship can form while the siblings are adults, as long as the caregiver is providing personal care and has financial responsibility for their incapacitated relative. The Sixth Circuit advised lower courts to look at the totality of the circumstances to determine whether this relationship exists.
If adopted by other federal circuits, this interpretation could greatly expand FMLA eligibility. Any two adult relatives, or in some cases non-relatives, could form an "in loco parentis" relationship if it involves extensive care of an incapacitated person. Human resource professionals could have a difficult time trying to figure out the extent of the relationship between the two parties, making eligibility determinations tricky.
Based on this decision, employers should not reject employee leave requests out of hand if they involve care for persons outside of the enumerated FMLA relatives. These requests need to be carefully reviewed, and no eligibility decision should be made until the company has a full explanation of the relationship between the parties and the type of care being provided. The plain language of the FMLA appears clear on this point, but these exceptions create potential legal exposure for companies that fail to do their homework.
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