A client posed a variation on the following question to me:
“I have an employee whose father is going in for surgery. She has requested FMLA leave, and I understand his surgery would be considered a serious health condition. However, she has a mother and sister who are also available to care for her father. Are we required to grant FMLA when there are two other caretakers available, who will be providing the primary care?”
The FMLA regulations provide that eligible employees may take leave when the employee is needed to care for certain qualifying family members (child, spouse or parent) with a serious health condition.
The FMLA does not require that the employee be the primary caretaker for the qualifying family member. Further, the employee does not have to be the only individual or family member available to care for the qualifying family member. The employee need only provide a certification from the healthcare provider that includes a statement that the employee is “needed to care for” the qualifying family member.
According to the FMLA regulations, “needed to care for” may encompass both physical and psychological care. For example, it includes situations where, because of the serious health condition, the family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or is unable to transport him or herself to the doctor.
It also includes situations where the employee is needed to provide “psychological comfort and reassurance” for a parent who is receiving inpatient or home care and where the employee may be needed to substitute for others who normally care for the qualifying family member.
FMLA Is Not Limited to Parents, Spouses, and Children
It should be noted that the definition of child includes individuals for whom the employee stood or is standing “in loco parentis,” and the definition of parent includes individuals who stood “in loco parentis” to the employee.
In the case of an employee seeking leave to care for an aging family member, employers should not immediately dismiss a request for leave to care for a grandparent, aunt or uncle, or even a family friend. In loco parentis refers to a relationship where one person assumes and discharges the obligations of a parent to a child, and does not require a biological relationship. The in loco parentis relationship exists when an individual intends to take on the role of a parent to a child who is under 18 (or 18 years or older and incapable of self-care because of a mental or physical disability).
Under the FMLA, to qualify as in loco parentis the person must have day-to-day responsibilities to care for or financially support a child. Applicable factors include:
• The age of the child;
• The degree to which the child is dependent on the person;
• The amount of financial support, if any, provided; and
• The extent to which duties commonly associated with parenthood are exercised
Based on the above, there may be circumstances where an employee will be eligible to take FMLA to care for an aging family member or friend who is not a parent.