In my last article I attempted to clarify the differences between FMLA coverage for Title I and Title II employees in the federal sector.
The Family and Medical Leave Act (FMLA) allows eligible employees to take up to 12 weeks of protected leave each year to care for their spouse, child, or parent who has a serious health condition; adoption or foster care of a child, or the employee’s own serious health condition. The law does not cover an employee’s in-laws, grandparents, aunts, uncles, cousins, children over 18 (unless there exists a physical or mental disability rendering the child incapable of self-care), or an unmarried domestic partner. The law is silent regarding FMLA care for a sick sibling.
Just when we thought we were clear on this point, the Department of Labor changed the playing field in June, 2010 clarifying the definition of a son or daughter, as it applies to an employee standing “in loco parentis” to a child. This change formally applied only to Title I employees, but the Office of Personnel Management announced it is adopting this interpretation for Title II employees, which covers most Federal employees.
On its face this change in the DOL regulations appears to apply to those with day-to-day obligations to care for and provide financial support for a child. The term in loco parentis, is Latin for “in the place of a parent” or “instead of a parent,” refers to the legal responsibility of a person or organization to take on some of the functions and responsibilities of a parent. Its origins are derived from English common law. A biological or legal relationship is a necessary requisite, and whether an employee is entitled to FMLA leave under this revision will largely depend upon the facts of the relationship. If FMLA was not complicated enough before, this 2010 change will give more sleepless nights to managers and HR Specialists. Courts have some guidelines to consider when determining in loco parentis situations:
- The age of the child
- The degree to which the child is dependent upon the substitute caregiver
- The degree of financial support, if any, and
- The degree of parental duties exercised by the caregiver.
While FMLA was silent on leave entitlements for sibling care, this new change may now include siblings who are seriously ill, if the employee can demonstrate an “in loco parentis” relationship. Interestingly, the Department of Labor regulations do permit leave for sibling care in the case of a military caregiver. That provision of the law grants up to 26 weeks of leave to care for a covered service member with a serious injury if the caregiver is spouse, son, daughter, parent, or next of kin to the employee.
The June, 2010 DOL change, and OPM Director Berry’s August 31, 2010 memorandum for Chief Human Capital Officers; speaks to the care of a child. However, an enterprising attorney or employee may attach a broader interpretation and attempt to open this change to care for siblings, or other family/nonfamily members mentioned above who are exempt from coverage, e.g., in-laws, grandparents, etc. If the employee is standing in “in loco parentis” to any of these individuals, would they not be entitled to FLMA leave under this revision? It is possible. While the Department of Labor intended to clarify, I am afraid they may have opened a can of worms, or this was intentional in order to later expand the entitlement. This would not be the first time this Administration has used the regulatory process to alter a law’s intent. After all, the FLRA Chairperson Carol Waller Pope included human resources as part of a bargaining unit in a “clarification of a unit petition” decision even though the labor law itself expressly does not permit this.
Until such that time there is further clarification and guidance, managers and HR specialists should adopt a strict construction of the law should they receive a FMLA request for leave to care for other family/nonfamily members not currently included. Since job creation is the current theme in politics, this change does create the Attorney Full Employment Act.