In Loco Parentis and Non-Traditional Caregiving Relationships

Posted on: February 4, 2020 0

By Gail I. Cohen, Director, Employment Law & Compliance

February 4, 2020

 

Recently, an Ohio federal district court heard a lawsuit filed by an Apple employee whose sister was terminally ill and claimed FMLA entitlement for his request to care for his nieces and nephews. The case, Brede v. Apple, involved a claim of FMLA interference and retaliation by a former Apple employee who worked in one of its stores at the Genius bar. That employee, Edward Brede, had requested one day of intermittent “FMLA” every 2 weeks to care for his seriously ill sister’s children. Apple granted his request under its Paid Family Care policy. After Brede was fired for violating company policy, he brought this lawsuit.

The district court granted Apple’s motion to dismiss the case.

In granting the motion to dismiss, the court took as true Brede’s claims of an in loco parentis relationship with his nieces and nephews. Even assuming that was the case, however, Brede can only take FMLA if the purpose of him doing so was to care for those children who needed care due to a “serious health condition;” and he did not ever indicate any of them did. Rather, the purpose of his request for time off was to care for them because his sister could not. Moreover, the court reasoned that if Brede had requested FMLA to care for his sister, who did have a “serious health condition,” he could only do so if he stood in loco parentis to her.

The FMLA defines a “parent” to include “an individual who stood in loco parentis to an employee when the employee was a son or daughter,” and similarly, a “son or daughter” is defined to include “a child of a person standing in loco parentis.” Employees who stand in loco parentis to a child can take FMLA to care for that child with a serious health condition and to care for an individual who stood in loco parentis when the employee was a child, when that “parent” has a serious health condition. The regulations go on to define persons who are in loco parentis as “those with day-to-day responsibilities to care for and financially support a child.”

The DOL has two (mostly) helpful Fact Sheets (#28B and #28C) that discuss in loco parentis. However, the DOL takes a broad view of who can take FMLA, stating in the fact sheets that it includes someone who has day to day responsibilities to care for a child OR financially supports a child.  As you can see from the regulations excerpted above, the FMLA actually requires BOTH.

There are not many court cases on record about the in loco parentis relationship. We previously blogged about Coutard v. Municipal Credit Union, in which the 2nd Circuit concluded an employee who sought time off to care for his grandfather provided sufficient notice to his employer of his need for FMLA. In reaching that conclusion, the court reasoned that it was incumbent upon the employer to dig further to determine whether his grandfather stood in loco parentis to him (which he, in fact, did, having raised the employee after his parents’ death).

Pings for employers

  • Be familiar with the two DOL Fact Sheets linked above. Despite that one glitch in expanding the scope, the Fact
    Sheets are otherwise quite helpful.  In particular, they offer these factors for consideration in assessing ILP status:

    • the age of the child;
    • the degree to which the child is dependent on the person;
    • the amount of support, if any, provided; and
    • the extent to which duties commonly associated with parenthood are exercised.
  • When an employee indicates he or she is seeking leave to care for a family member that is not a specific FMLA
    covered relationship (i.e., parent, son or daughter, or spouse), talk to the employee about his or her relationship
    to that individual.
  • If the employee is requesting time off to care for a “parent”, like the Coutard matter, ask:
    • Did the relative care for him or her as a child OR provide financial support?
    • Do they reside together, or did they do so in the past?
  • If the employee is requesting time off to care for a “child” (as in the Brede case), include:
    • Has the employee assumed daily responsibility for care for or financially support the child?
    • Does the employee intend to assume a “parenting” role and if so, is there a permanent intent to do so?

Consider state leave laws also

This discussion is focused on FMLA, but it is important to remember that many of the state FMLA-like leave and paid family and medical leave laws include care for family members beyond the traditional definition in FMLA. Common additions include grandparents, grandchildren, siblings, and – our favorite – the “like a family member” relationship.  For example, New Jersey allows leave for any individual with a close association with the employee equivalent to a family relationship.

In general, because of this expanded focus at the state leave level to recognize the non-traditional nature of evolving families, it is critical for employers to keep an open mind about these requests and ferret out the right facts to ensure they are providing employees with the leaves to which they may be entitled.

MATRIX CAN HELP!

Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

 

South Carolina Enacts Pregnancy Accommodations Law

Posted on: June 18, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

South Carolina has joined a legion of other states by passing a law that provides workplace protections and accommodations for women affected by pregnancy, childbirth, or related medical conditions, including lactation.  Each state puts its own stamp of originality on the provisions of such laws, but many common themes carry through – for example, these laws do not require the employee to be “disabled” by pregnancy to be entitled to an accommodation.

The South Carolina Pregnancy Accommodations Act (H 3865) was signed by the Governor on May 17, 2018, and became effective immediately.  Here are some of the key provisions of the law.

Reasonable accommodations.  The law requires employers to provide a reasonable accommodation for medical needs of an employee or applicant arising from pregnancy, childbirth or related medical conditions, unless the employer can demonstrate that the accommodation would impose an undue hardship on the employer’s business.  “Reasonable accommodation” is defined to include:

  • Providing more frequent or longer break periods (but the employer is not required to compensate
    the employee for breaks that exceed normal paid breaks in duration or frequency);
  • Providing more frequent bathroom breaks;
  • Providing a private place, other than a bathroom stall, for the purpose of expressing milk;
  • Modifying food or drink policy;
  • Providing seating or allowing the employee to sit more frequently if the job requires the employee to stand;
  • Providing assistance with manual labor and limits on lifting;
  • Temporarily transferring the employee to a less strenuous or hazardous vacant position, if qualified;
  • Providing job restructuring or light duty, if available;
  • Acquiring or modifying equipment or devices necessary for performing essential job functions; and
  • Modifying work schedules.

Notice to employees.  Employers must provide written notice to employees of “the right to be free from discrimination for medical needs arising from pregnancy, childbirth or related medical conditions” pursuant to the law.  This notice must be provided to new employees upon hire and to existing employees within 120 days after the effective date of the act.  Such notice must also be posted in the employer’s business at a place accessible to employees.  The state has not yet provided a prototype notice for employers’ use, which is problematic since new hires are entitled to the notice starting on the act’s effective date (which means now).

Miscellaneous provisions.  The law also extends existing nondiscrimination protections for workers to include employees affected by pregnancy, childbirth and related conditions.  In addition, employers must ensure that existing facilities used by employees are readily accessible to employees with medical needs arising from pregnancy, childbirth or related medical conditions (as well as to others with disabilities).

Pings for Employers

  • Develop, post, and start providing the required notice to employees right away. The law was effective upon
    the Governor’s signature on May 17, so any new hires are already entitled to receive the notice and existing
    employees 120 days thereafter.
  • Oddly, the notice requirement, as quoted above, only addresses the right to be free from discrimination,
    not the right to reasonable accommodations for pregnancy and related conditions. Unless and until the
    state provides a prototype notice form, employers should play it safe and include the right to accommodations
    in the notice as well.
  • Unlike some other recent pregnancy protection laws, the South Carolina act does not address what
    documentation an employer can require to verify an employee’s accommodation request.
    Employers should consider providing the simpler accommodations such as a seat, modification of food
    and beverage rules, or more frequent breaks – without the need for medical documentation. Other types
    of accommodations may justify a request for medical support, if the need for the accommodation is not
    obvious and/or is outside of the normal types of pregnancy-related conditions or limitations employees
    may experience.

Matrix can help!  Matrix will assist employers in administering the accommodations provisions of this new law if the client has engaged Matrix for ADA services.

 

 

Hawaii adds siblings as a covered relationship for family leave

Posted on: July 13, 2017 0

By Marti Cardi, VP-Product Compliance

& Gail Cohen, Director-Employment Law/Compliance

 

On July 10, 2017, the governor of Hawaii signed an amendment to the state’s family leave law, adding siblings as a family member for whom an employee can take leave.  The amendment took effect immediately.

Under the Hawaii law, employees who have worked for an employer for at least 6 consecutive months are entitled to 4 weeks of unpaid, job-protected leave per 12-month period:

 

  • To bond with a newborn biological child or newly adopted child (a newly placed foster child is not covered); and
  • To care for the employee’s child, spouse, reciprocal beneficiary, sibling, or parent with a serious health condition.

The terms “child” and “parent” are defined broadly by the Hawaii statute for the purpose of caring for a family member with a serious health condition:

  • Child: biological, adopted, or foster son or daughter, a stepchild, or a legal ward of an employee.
  • Parent: biological, foster, or adoptive parent, a parent-in-law, a stepparent, a legal guardian, a grandparent, or a grandparent-in-law.

Employers with 100 or more employees must comply with the law.

The Hawaii family leave law does not provide leave for an employee’s own serious health condition.  However, the state does have a pregnancy disability leave law; temporary disability benefits for up to 26 weeks per year through an employee/employer funded state program; and leave to donate an organ, bone marrow, or peripheral blood stem cells.

 

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.