In loco parentis sounds like it means “crazy parent”. It is a Latin phrase that means “standing in the place of a parent”. It’s a legal doctrine in FMLA leave regulations. For FMLA leave the in loco parentis doctrine allows employees to take leave to care for an individual who has a parent-child relationship with the employee but is not biologically a parent or child of the employee.
This can be extremely important for modern family structures where children may be raised by grandparents or other family members. In these families the need for leave to care for a family member is no different from traditional family structures. The Department of Labor preserves access to FMLA leave in these situations through its in loco parentis regulation. Today’s post will discuss the basic FMLA caregiver leave rules, how the in loco parentis FMLA leave regulation works and third how employees typically interact on this issue with their employers.
Family members defined under FMLA for leave protections
Under FMLA statutory and regulatory language, an eligible employee is permitted up to twelve weeks of unpaid leave for, among other reasons, the care of a child, parent, or spouse who has a serious medical condition. The definition of a parent includes biological parents, step-parents, foster parents and adoptive parents. The definition of child includes biological children, step-children, foster children and adoptive children but limits FMLA coverage to any of these classes of children who are under the age of eighteen or are over eighteen but cannot care for themselves due to a disability. (FMLA regulations use the language “son or daughter” but for brevity we will just use the terms “child” or “children” for that meaning.) This basic FMLA rule excludes grandparents, aunts and uncles, grandchildren, siblings, cousins, nieces and nephews and other family members beyond the immediate family.
In loco parentis defined under FMLA law
The definitions of parent and child under FMLA regulations include individuals who were in loco parentis to the employee when the employee was a minor or an individual to whom the employee stands in loco parentis. An individual is in loco parentis to another when the first provides care as a parent. This typically means providing for a minor or disabled person. It is not enough that you provide any person shelter or food. It must be a person who relies upon a parent’s care. That limits to a minor child or a person with a disability. If your adult friend moves into your guest bedroom then that would not qualify. If the friend brings her ten year old son and you are caring for the child then you may meet the standard.
How FMLA in loco parentis leave works
It’s easy to first explore when the employee stands in loco parentis to another individual under FMLA regulations. These situations are easier to identify because it is ongoing. The child or disabled person can be readily identified at the time of the FMLA request. This is typical in situations where grandparents take on raising their grandchildren or an aunt and uncle take care of a niece or nephew. Here the grandparent, aunt, or uncle is an adult who can show the child lives in their home. The employer may already be aware of the in loco parentis relationship due to the health insurance.
It’s more difficult to show a in loco parentis relationship existed when the employee was a child. These situations arise in the same types of relationships in which the employee stands as a parent but in reverse. Instead of the employee acting as a parent, somebody else acted as a parent to the employee. It’s more difficult to prove the existence of this relationship because the employee is not a minor child. There is not always immediately available evidence that somebody stood in loco parentis to the employee.
Proving in loco parentis for FMLA in
There are ways to prove this relationship even if there is no minor child to point to at this time. The employer can investigate the employee’s claim. If it disbelieves an in loco parentis relationship existed it does so at the risk that the employee files suit. Employers often defer to a reasonable explanation from the employee to avoid creating litigation.