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Jan28

FMLA Legal Guardianship of Aunt

I have an employee who has legal guardianship of his Aunt and is requesting FMLA. This does not fall under the Loco Parentis for child. This Aunt was also not responsible for the employee’s upbringing so doesn’t qualify in that respect either. Thoughts?

The Family and Medical Leave Act (FMLA) entitles an eligible employee to take up to 12 workweeks of job-protected unpaid leave to care for a spouse, son, daughter, or parent with a serious health condition.

For FMLA purposes, a “parent” is defined broadly as the biological, adoptive, step, or foster parent of an employee or an individual who stood in loco parentis to the employee when the employee was a son or daughter.

Extended family members (i.e. aunts/uncles) are not covered under the FMLA guidelines unless they stood in loco parentis to the employee when he was a minor. In loco parentis refers to an individual who assumes parental status and carries out the obligations of a parent (i.e. financial support or day to day care) to a child with whom he or she may have no legal or biological connection.

As you state, the employee’s aunt wasn’t responsible for the employee’s upbringing; thus, an “in loco parentis” relationship doesn’t exist. So, absent any evidence of an in loco parentis relationship, the employee doesn’t qualify for FMLA leave to care for his aunt even if he is her legal guardian.

The DOL posted an opinion letter somewhat related to this matter that you may find interesting: http://www.dol.gov/whd/opinion/FMLA/prior2002/FMLA-96.htm.

Also, you may consider allowing the employee to take a personal leave of absence. If you decide to do so make sure you have the terms of the agreement clearly documented. Further, it’s important to treat all employees consistently. So, by allowing this employee to take leave you’re setting a precedent that should be followed for other employees in similar situations.

HTH!

This entry was posted on Thursday, January 28th, 2016 at 9:42 am and is filed under
Labor Laws, Workplace Management.
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