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Employee Leave to Care for a Parent under the Family and Medical Leave Act of 1993

Overview: Family and Medical Leave Act of 1993

The Family and Medical Leave Act of 1993 (“FMLA”), as amended, protects employees who need leave from work for their own medical condition(s), as well as for the care of certain other individuals. Under the FMLA, only eligible employees of a covered employer can take advantage of the Act’s guaranteed annual leave and its protections against employer interference and/or retaliation. The FMLA generally provides for twelve (12) weeks of guaranteed leave within a twelve (12) month period, with some exceptions. Among other reasons for leave, an employee can request and potentially receive leave to care for a parent of the employee if such parent has a serious health condition.

Who is considered a “parent” under the FMLA?

Under the FMLA, a “parent” is defined as “the biological parent of an employee or an individual who stood in loco parentis to an employee when the employee was a son or daughter.” Applicable regulations further clarified “parent” to mean “a biological, adoptive, step or foster father or mother, or any individual who stood in loco parentis to the employee when the employee was a son or daughter . . . This term does not include parents ‘in law.’”

An individual standing “in loco parentis” refers to a situation where an individual has become a “parent” by assuming and discharging the obligations of a parent to a child. This relationship exists when an individual intends to take on the role of a parent and assumes the day-to-day responsibilities of caring for and/or financially supporting the child. Factors considered by the courts in determining in loco parentis status include but are not limited to (i) the age of the child; (ii) the degree to which the child is dependent on the person; (iii) the amount of support, if any, that is provided; and (iv) the extent to which duties commonly associated with parenthood are exercised. An individual may stand “in loco parentis” to a child even if the child also has a biological, step, foster, or other parent.

Does an employee have to prove in loco parentis for FMLA leave to care for a parent?

Yes. Similar to other FMLA leave reasons, an employer has a right to “documentation” of a family relationship. However, this documentation is limited to the employee’s own statement asserting the relationship existed. Although the information required from an employee is fairly simple, the employee should nonetheless provide sufficient information to ensure the employer is aware of how the individual in need of care stood in loco parentis when the employee was a “son or daughter.”

Therefore, if all requirements under the FMLA are met, an eligible employee may take FMLA leave to care for an individual that stood in loco parentis to the employee when the employee was a child, regardless of biological relationship.

If you feel your employments rights under the Family and Medical Leave Act have been violated, or if you have any other questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Wrady Michel & King. You can contact us either online or by calling us at (205) 319-9724. We are here to serve you.

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