The FMLA Blog

Adequate Employee Notice of the Need for FMLA Leave Involving In Loco Parentis Parent: Further Explanation Required

The FMLA allows an eligible employee of a covered employer to take FMLA leave to care for a covered family member, including a parent.  A "parent" includes a biological, adoptive step or foster mother or father, or any other individual who stood in loco parentis to the employee when the employee was a son or daughter (e.g., under 18 years of age, or over 18 years of age an incapable of self-care due to a disability).  29 CFR 825. 122(b).  In loco parentis means that the individual had day-to-day responsibility to care for or financially suport the employee when the employee was a son or daughter.  29 CFR 825.122(c)(3). 

To invoke the protections of the FMLA, the employee must notify his or her employer of the need for FMLA-qualifying leave.  The FMLA's notice requirements are not onerous.  Basically, the employee must provide adequate information to apprise the employer that the leave may be in need of FMLA leave. An employee need not invoke the "FMLA" by name.  If the employer needs more information to determine whether the leave is covered by the FMLA, they are required to inquire further.  

In Ruble v. American River Transportation Co., No. 2:10 CV 24 DDN (E.D. Mo. June 29, 2011), Jack Ruble notified his supervisor (the boat captain) that his 90-year-old grandmother was ill and that he may need to leave the boat during the voyage.  It was uncontested that Ruble's grandmother took exclusive care of Ruble when he was a child for several years. 

During the voyage, Ruble was notified by his family that his grandmother had been diagnosed with terminal cancer and was not expected to live more than a week.  That day, he told the boat captain that his grandmother had terminal cancer, that she was not expected to live more than a week, and that he wanted to leave the boat.  Ruble and the crew lived on the boat during the voyage.  Under Company policy, leaveing the boat during a voyage without approval was grounds for removal.  The boat captain referred Ruble to the Company Personnel Manager, whom Ruble called and explained the situation. 

Ruble told the Personnel Manager that his grandmother was ill and he needed to go see her before she died because she had taken care of him.  He delayed leaving the vessel for a few days while the Company tried to secure a replacement.  The Company asked Ruble to wait one more day for the replacement before leaving the boat.  Ruble declined, and flew home.  He did not, however, see his grandmother at the hospital until the following day. 

Ruble's grandmother was discharged from the hospital a few days after he arrived.  She stayed with her daughter, who was primarily responsible for her care.  Ruble's grandmother did not live with him at his home near or before her death.  Ruble stayed by his grandmother's side throughout her hospital stay, providing psychological comfort, and care.  He also spent almost every day with his grandmother while at Shipley's house.  Ruble's grandmother died on May 18.  

Ruble was terminated from employment for leaving the boat without authorization during the voyage.  He sued, alleging that his termination violated the FMLA.  The Company moved for summary judgment to dismiss the case, arguing that Ruble failed to provide adequate notice that the leave may be FMLA-qualifying. The Company argued that Ruble failed to adequately notify it that his grandmother was his in loco parentis parent while Ruble was a child.  Absent an in loco parentis relationship, the FMLA does not entitle an employee to take leave to care for a grandparent.

The Court opined:

When an employee seeks to invoke FMLA benefits based on an in loco parentis relationship, the employee must provide his employer with sufficient facts indicating that such a relationship may exist. See Sherrod v. Philadelphia Gas Works, 57 Fed. Appx. 68, 72-73 (3d Cir. 2003)("Since [the employee] did not initially tell her employer that her grandmother had raised her, she failed to sufficiently explain her reasons for the needed FMLA."); Abousaidi v. Mattress Discounters Corp., No. 1:05CV1142 (JCC), 2005 WL 3797366, at *2 (E.D. Va. Dec. 8, 2005).  Otherwise, the employer could not know that the employee's leave may be secured by the FMLA. See Wierman,638 F.3d at 1000 (the employer's duties do not arise until the employee gives sufficient information to who that he may be in need of FMLA leave).

The Court found that Ruble's assertion that he told the Personnel Manager that his grandmother "took care of him," coupled with his more effusive affidavit on the subject, created a genuine issue of material fact regarding the adequacy of Ruble's notice sufficient to defeat the Company's motion for summary judgment. 

Comment:  To secure the benefits and protections of the FMLA, an employee requesting FMLA leave to care for an in loco parentis parent must articulate some facts to put the employer on reasonable inquiry notice that the leave might be FMLA qualifying.  An in loco parentis parent does not have to involve a legal or biological relationship.  All that is required is that the individual had responsibility to care for and/or financially support the employee when the employee was a son or daughter within the meaning of the FMLA.  Absent a biological or legal relationship, it may not be obvious to an employer that a grandparent, older sibling, uncle, aunt, or someone else cared for the employee when the employee was a child.  While an employee need not affirmatively assert an in loco parentis relationship (although they certainly could do so), the do need to articulate some facts suggesting an in loco parentis relationship.  If the employer needs additional information to confirm an in loco parentis relationship, the burden is on the employer to inquire further.

As demonstrated in Ruble, the notice bar on this issue is relatively low (e.g., my grandma took care of me).  It is not, however, non-existent.  Employers, in turn, must be alert to in loco parentis relationships as a qualifying basis for FMLA leave.  When in doubt, ask the employee to clarify the nature of what might be an in loco parentis relationship.      

 

 

  

In Loco Parentis Relationship May Entitle Grandparent to FMLA Leave

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.    

In Loco Parentis Relationship Not Established by Providing Daycare

In Martin v. Brevard County Public Schools , No. 6:05-cv-971-Orl-22KRS, 2007 U.S. Dist. LEXIS 9910 (M.D.Fla. Fb. 13, 2007), Anthony Martin was approved for FMLA leave from May 7 through June 30 to care for his granddaughter, Hannah.  Martin was needed to care for Hannah while his daughter, Brittany, was off on army reserve duty.  Brittany was a single mother of Hannah.  Martin advised Brevard County that he would be standing in loco parentis to Hannah during the leave as he would be providing a home, transportation, food, money for expense, and health insurance.  Brevard County approved the leave. 

Martin was on a performance improvement plan (PIP) at the time he requested leave.  Although his FMLA leave was approved, Martin was told that if he took FMLA leave and was unable to fulfill the requirement of the PIP his employment contract would not be renewed.  Plaintiff asked to work on an intermittent schedule to address the requirements of this PIP.  The County refused.  Martin took the leave as scheduled. 

Brittany was never called to active service. Martin was, in essence, a stay-at-home parent for Hannah, bonding and caring for her to prepare them both for Brittany's anticipated absence, if it occurred.  Brittany did not deviate from the schedule she maintained before Martin took leave.  Martin also took care of Hannah while Brittany was at her 3-day Army Reserve drills. 

The County did not renew Martin's employment contract based on his failure to meet the requirements of the PIP.  Martin sued alleging that the County's actions constituted impermissible interference with and retaliation his FMLA rights.  The County moved for summary judgment.

The County argued that Martin could not maintain his civil suit because he was not entitled to FMLA leave.  Martin, the County argued, was not an in loco parentis parent to his granddaughter.  Martin did not have "day-to-day responsibilities to care for and financially support a child" as required to be an FMLA-covered in loco parentis parent for purposes of FMLA leave.  The Court agreed.

The Court cited Maryland law to determine whether Martin stood in loco parentis to Hannah during his absence on leave.  The Maryland Court explained in loco parentis as follows:

The term "in loco parentis, according to is generally accepted common law meaning, refers to a person who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to legal adoption.  It embodies the two ideas of assuming parental status and discharging the parental duties....The key in determining whether the relationship is found is the intention of the person allegedly in loco parentis to assume the status a parent toward the child.  The intent to assume such parental status can be inferred from the acts of the parties.  Other factors which are considered in determining whether in loco parentis status has been assumed are (1) he age of the child; (2) the degree to which the child is defendant on the person claiming to be standing in loco parentis; (3) the amount of support, if any, provided; and (4) the extent to which duties commonly associated with parenthood are exercised....

The definitions of t the term "i loco parentis" are often context specific, and no court-or regulation- has defined the term exhaustively.  For some purposes, the presence of a biological parent in the home may foreclose another from holding the status of "in loco parentis." But for others ...the presence of [a biological parent] in the home is not fatal to Plaintiff's claim.

Here, Martin took FMLA leave because his daughter was going to be deployed overseas and, as a result , he would have had to take care of Hannah. However, Brittany was never deployed.  Plaintiff cared for Hannah only when Brittany was at school or away on weekend training for the Army; both routine activities she did before she received notice that she was supposed to be deployed.  Plaintiff financially supported both Brittany and her daughter before and during the period he took FMLA leave.  According to the Court, "the actual household dynamic" had not changed. Brittany maintained the same schedule she had before Martin went on leave. "The simple fact is that nothing changed in Plaintiff's day-to-day life.  Plaintiff, the Court found, "did not stand in loco parentis to Hannah. The Court awarded summary judgment to the employer dismissing Martin's FMLA claim.

Comment: For this court, an in loco parentis relationship requires more than simply providing day care during short periods of time the biological or legal parent is out of the house.  Rather, an in loco parentis relationship requires a change in the "household dynamic" or relationship between the employee taking leave, the parent, and the child.  The Court compared what was occurring both before and after the leave to make this determination. 

Note that, technically, Martin met the definition of an in loco parentis parent.  At all time he had he had financially responsibility for Hannah.  He was financially responsible for both Brittany and Hannah before and during leave.  When Brittany was out, including her 3-day absence to attend Army Reserve training, Martin also had day-to-day responsibility for Hannah's well-being.  Even though Martin met both requirements for an in loco parentis relationships during these short absences, the Court nevertheless found that the situation did not rise to the level of an in loco parentis relationship for purposes of FMLA leave.  If Brittany went overseas that would likely have change the circumstances sufficiently for Martin to be considered in loco parentis to Hannah. 

Note also that the presence of the biological or legal parent in the household is not determinative of whether an employee may be acting in loco parentis to a child for purposes of FMLA leave.  Every situation will have to be judged on its own merits.  This makes sense. For example, a biological parent of a minor child who is medically incapacitated to the point that they are unable to financially support and provide day-to-day care for the child may be in the house at the same time as the in loco parentis employee.