The FMLA permits an eligible employee to take FMLA leave to care for, among others, a son or daughter. A son or daughter is defined to cover a biological, legal (adoption, foster care placement), or an in loco parentis relationship. In loco parentis means "in the place of a parent." It refers to a person who has assumed the obligations and role of a parent toward another. A biological or legal relationship is not required. The DOL defines in loco parentis for purposes of the FMLA to include persons with "day-to-day responsibility to care for and financially support a child..."
Over the years courts have had few opportunities to flesh out exactly what "day-to-day" responsibility to care for and financially support a child means for purposes of FMLA leave. The issue was recently addressed by the Eleventh Circuit in Martin v. Brevard County Public Schools, No. 07-11196, 2008 U.S. App. LEXIS 20580 (11th Cir. Sept. 30, 2008). The decision involved an appeal of a district court decision awarding summary judgment to the employer on the employee's FMLA claim. I posted on the district court decision on September 20, 2007.
Briefly, Martin was the father of Brittany, a single mother, and the grandfather of Hannah, Brittany's daughter. Hanna was born approximately 6 months before the events at issue began to unfold. Brittany and Hannah lived with Martin while Brittany attended school. Martin provided substantial financial support to both, furnishing them a home, utilities, transportation, food, money for expenses, and health insurance.
Martin worked on an annual contract basis for a local School District. Due to performance issues, he was placed on a 60-day performance improvement plan. At about the same time, Brittany's Army Reserve unit was called to active duty for overseas deployment. In order to take care of Hannah while Brittany was deployed, Martin requested 12 weeks of FMLA leave. The 12 weeks would run smack through the performance improvement period. The School granted the leave, but for a shorter period than requested (till the end of his contract year). Martin took the FMLA leave. Brittany never deployed. However, she continued to to attend school and attend weekend Army Reserve training. In addition to continued financial support, Martin took care of Hannah whenever Brittany was not home such as bathing feeding, and diapering. Because Martin did not fulfill the performance improvement plan, the School did not renew his employment contract. Martin sued alleging interference with and retaliation for exercising FMLA rights.
The Eleventh Circuit vacated the district court's award of summary judgment in favor of the employer and remanded the matter for further action. Regarding the existence of an in loco parentis relationship between Martin and Hannah, the Eleventh Circuit did not find one way or the other. Because, however, Martin provided Hannah substantial financial support, including a home, food, and healht insurance, and because Martin also played a significant role in caring for Hannah when Brittany was not home and even though she never deployed, the court opined:
We cannot say as a matter of law that Martin stood in loco parentis relationship with Hannah, nor can we say that he did not.
Because there were genuine issues of material fact in dispute on the issue, the court found that the district court erred in concluding otherwise.
Comment: The district court ruled in favor of the employer after finding that an in loco parentis relationship required more than providing day care for short periods of time. Relying on Maryland law, the district court required a change in the "household dynamic" between the employee taking leave, the parent, and the child. The opinion of the Seventh Circuit would appear to scuttle that higher "household dynamic" standard relied on by the district court. The opinion also opens the possibility that short periods of care may be covered by an in loco parentis relationship, provided the requirements of in loco parentis (financial and day-to-day care responsibilities) are met. Stay tuned for the next chapter on remand.