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Monday, May 23, 2016

Can I take time off work under the FMLA to care for a parent-in-law?

Taking care of aging parents, or eldercare, by adult children who are still in the workforce is more common than before as people are retiring later in life, the age to commence receiving full social security benefits may be later than before, depending on the recipient’s birth year, and persons are living longer in the U.S. A federal statute, the Family and Medical Leave Act, (FMLA) and the New Jersey Family Leave Act, (FLA) allow certain covered New Jersey employees who need to take time off from their employment for eldercare to take care of a seriously ill parent and certain other relatives. Not all employees are entitled to such leave however, and not all employers are required to give such time to employees for eldercare and the care of younger parents.

Certain persons who provided care for the employee when the employee was younger, in some instances may be the beneficiaries of these two laws. “In loco parentis” is a legal doctrine describing a relationship of an adult who is not a biological or adoptive parent, but has a relationship similar to that of a parent to a child. In general terms it means an individual who assumes parental status and responsibilities for another individual, usually a young person, without formally adopting that person.

Under the FMLA, a person does not have to be the biological parent of the employee who is seeking the FMLA leave, but certain criteria must be met for the FMLA’s  definition of "parent" as it applies to an individual who stood “in loco parentis” to the employee seeking the leave.

 The FMLA entitles an eligible employee to take up to 12 workweeks of job-protected unpaid leave to care for a parent with a serious health condition.  29 USC 2612(a)(1). FMLA leave may be taken to provide care for any individual who is the employee's "parent" as the term is defined in the statute and its regulations.  29 USC 2611(7).

In enacting the FMLA, Congress wanted to provide protections regarding the changing nature of the American population and family and the growing need for wage earners to provide care both for their children and for their parents, and the growing number of elderly Americans . Under the FMLA, for leave purposes, a "parent" is defined broadly as the biological, adoptive, step, or foster parent of an employee or an individual who stood “in loco parentis” to the employee when the employee was a son or daughter.  29 C.F.R. § 825.122. 

However, under the FMLA, "parent" does NOT include the employee's parents-in-law, even though a stay-at-home spouse may realistically be the best one and sometimes only one, who has the time and skill to provide such care. Under the state statute, the FLA, a parent-in-law IS included under the category of "immediate family member".

Under FMLA, “in loco parentis” exists when an individual intends to take on the role of a parent. It applies to the kind of relationship in which a person has placed themself in the situation of a parent by assuming and discharging the responsibilities and obligations of a parent to a child. An 
“in loco parentis” relationship may exist ever if the child had a biological parent.

The statute’s regulations define in loco parentis as including persons with day-to-day responsibilities to financially support a child care or daily care for the child. Courts in interpreting the FMLA have indicated some factors they consider in determining whether in loco parentis status exists are:
the degree to which the child is dependent on the person;
the amount of support the person provides if any, provided;
the age of the child; and
the extent to which responsibilities commonly associated with parenthood are exercised.

An eligible employee is entitled to take FMLA leave to care for such 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 while 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 biological or legal relationship is necessary, grandparents or other relatives, such as brothers and sisters, may stand in loco parentis to a child under the FMLA as long as the relative satisfies the in loco parentis requirements.

Every case is fact specific and conditions must be evaluated according to the specific facts.

Examples of when there is no biological or legal relationship between the persons, but “in loco parentis” may be found for an employee to take leave to care for a parent are:

An employee may take leave to care for her  aunt with a serious health condition, if the aunt stood in loco parentis to her when she was a "son or daughter" (as defined by the statute).

An employee may take leave to care for his grandmother with a serious health condition if the grandmother stood in loco parentis to him when he was a "son or daughter."

A "son or daughter" of a same-sex partnership may take leave to care for the non-adoptive or non-biological partner who stood in loco parentis.

Unless an in loco parentis relationship existed when the employee was a "son or daughter," as defined by the statute, an employee is not entitled to take FMLA leave to care for a grandparent or an aunt with a serious health condition. 

An employer may require documentation as to the loco parentis relationship. An employee should provide sufficient information to make the employer aware of how the individual in need of care stood in loco parentis to the employee when the employee was a "son or daughter." 29 CFR § 825.122. The employer's right to documentation of family relationship is the same for an employee who asserts the need to care for an individual who stood in loco parentis, as it is for a biological, adoptive, or other parent. Such documentation is limited to the employee's simple statement asserting the relationship and for an employee seeking leave to care for an individual who stood in loco parentis to the employee, the statement may include, for example, the name of the individual and the statement that this person stood in loco parentis to the employee when the employee was a child.

In loco parentis status under the FMLA does not change the FMLA's other requirements, such as those regarding coverage, eligibility, and qualifying reasons for leave. All requirements must be met for the protections to apply. An employee asking for leave to take care of one who stood in loco parentis to the employee may be required to provide notice to the employer of the need for leave and to submit medical certification of a serious health condition consistent with the FMLA regulations.

Under New Jersey’s statute, the FLA, "parent" means a person who is the biological parent, adoptive parent, resource family parent, step-parent, parent-in-law or legal guardian, having a "parent-child relationship" with a child as defined by law, or having sole or joint legal or physical custody, care, guardianship, or visitation with a child.

In all cases, conditions as to whether an in loco parentis relationship under the FMLA, or parent-child relationship exists under the FLA, would be evaluated by the court according to the specific facts. An employer is prohibited from discriminating or retaliating against an employee who requests time off under these statutes. If an employee complains or reports to certain authorities that the employer does not adhere to either of these statutes, the complaining employee may have a whistleblower claim.

If your employer denied you time off to take care of a seriously ill parent or other relative, it is essential for you to contact an experienced and competent employment attorney who will be aggressive about enforcing your rights.

Every situation is fact specific, and if you are a person who believes you may be the target of the employer’s illegal acts, please contact Hope A. Lang, Attorney at Law, today a for a free consultation.

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