Business and Legal Insights

A common misconception is that the Family Medical Leave Act (FMLA) does not apply when an employee cares for a sick grandparent.  However, prudent employers and human resources professionals should carefully examine the facts of each situation to ensure compliance with the law.

The FMLA requires employers to provide leave to care for a spouse, parent, child, or sibling with a serious health condition.[1]  But the FMLA includes in its definition of “parent” both biological parents and individuals who stood in loco parentis to an employee when the employee was a child.[2] In loco parentis refers to those individuals who had day-to-day responsibility for the care of the employee when the employee was a child.[3] When evaluating if a grandparent stood in loco parentis to an employee, courts and the Department of Labor examine the age of the child when the grandparent cared for the child, the degree to which the child was dependent on the grandparent, the amount of support given by the grandparent, and the extent to which duties commonly associated with parenthood were exercised by the grandparent.[4]

Even if it is determined that the in loco parentis exception does not apply to a particular situation, employers should be aware that some local ordinances explicitly allow for FMLA leave to care for a grandparent. For example, Miami-Dade County has an ordinance which allows for FMLA leave to care for a grandparent with a serious health condition.[5]

Employers should carefully review their policies and consult with their employment law attorneys to ensure compliance and avoid unintentionally opening themselves up to liability.

[1] 29 U.S.C.A. § 2612.

[2] 29 U.S.C.A. §2611(7).

[3] 5 C.F.R. § 630.1202.

[4] See Dillon v. Maryland-National Capital Park & Planning Com’n, 382 F. Supp. 2d 777, 787 (D. Md. 2005) (finding the employee put forth sufficient evidence to create a genuine issue of material fact as to whether her grandmother stood in loco parentis to her); see also Martin v. Brevard Cnty. Public Schools, 543 F. 3d 1261 (11th Cir. 2008) (applying the in loco parentis analysis and quoting Dillon v. Maryland-National Capital Park & Planning Com’n, 382 F. Supp. 2d 777, 787 (D. Md. 2005)); Coutard v. Municipal Credit Union, 848 F.3d 102, 113 (2d Cir. 2017) (“Both the express provisions in the FMLA for coverage with respect to in loco parentis relationships and the express example of a grandmother in the publication available to employers on the DOL website… made it reasonable for MCU to understand that Coutard's request for leave in order to take care of his seriously ill grandfather might come within the FMLA.”); Department of Labor Fact Sheet #28C (discussing the FMLA’s in loco parentis factors), available at https://www.dol.gov/whd/regs/compliance/whdfs28C.pdf.

[5] Miami Dade Ordinance, § 11A-31 (“An employee may also take leave under this chapter to care for a grandparent with a serious health condition on the same terms and conditions as leave is permitted under the Family and Medical Leave Act to care for a parent with a serious health condition.”).