FMLA leave and “in loco parentis”

A California employer of a worker who has applied for leave under the Family and Medical Leave Act to care for someone who is not legally or biologically the employee’s parent or child might still be required to grant that employee FMLA leave. “In loco parentis” refers to a relationship that is like that of parent and child, and if this relationship exists, the employee may be eligible for FMLA leave. Furthermore, the employee does not have to specifically invoke the phrase “in loco parentis” but simply needs to state the nature of the relationship. It may be up to the employer to ask for more information.

For example, one employee was denied leave to care for his grandfather who had raised him for about a decade of his life. The court ruled that even though the employee did not say that the two had an “in loco parentis” relationship, the employer had an obligation to to inform the employer of the right to FMLA leave based on such a relationship.

However, an employer may request supporting evidence. In another case, a woman was denied FMLA leave to care for her aunt. She had referred to the woman as her “stepmother” and “adopted mother” but did not provide the evidence of signed report cards as requested by the employer. The court sided with the employer in that case.

Employees who have been denied FMLA leave to care for someone who has been like a parent or child to them might want to speak to an attorney. For example, they may be raising a friend’s child without being the child’s legal guardian. However, it might not be legal for the employer to deny employees the right to FMLA leave on the grounds that the child is not theirs legally or biologically.

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