Defining FMLA's “In Loco Parentis”

“In loco parentis” is one of FMLA’s most misunderstood rules. On the surface, the definition is clear, and the Department of Labor’s examples are easy to understand. But in practice, it can be very challenging.

Background

The eligible dependents under FMLA include a spouse, a parent or step-parent (but not parent-in-law), a child, including step-children, adopted children, foster children, children placed in the person’s legal custody, or a person with an “in loco parentis” relationship to the employee. “In loco parentis” means a person for whom the employee has day-to-day parenting responsibilities and/or provides financial support, or for a person who served “in loco parentis” to the employee when they were a child.  

FMLA includes the “in loco parentis” definition because nuclear families are not as common as they use to be. The intent is to allow leave for people who are caring for children for whom then are not biologically or legally related, but nonetheless have responsibility for.

DOL Definition

The DOL has two sources of information on “in loco parentis”. There is an Administrator’s Letter from 2010 (click here to read it) that give a lot of great details about when a non-biological child would qualify as a dependent under “in loco parentis”. And their Fact Sheet #28C speaks to when a parent would meet the definition (click here to read it).

Examples

Here are some examples of an “in loco parentis” relationship:

  • Your employee is caring for a grandchild because their father is no longer around, and their mother is incarcerated.
  • Your employee is caring for a niece because the child’s mother passed away and their father lives abroad.
  • Your employee lives with his girlfriend and share’s the day-to-day responsibilities of child care for her children, even though the children’s father is also sharing responsibility.
  • Your employee is caring for a grandparent who raised them because their parents were incapable of raising them when they were a child.

Here are some situations that are NOT an “in loco parentis” relationship:

  • Your employee is caring for their uncle because they don’t have any children, but the uncle did not serve in a parental role to them in the past.
  • Your employee does not live with his girlfriend or share in responsibility for her children, but is planning to take on a parental role in the future.

Documentation

Even if you’re on board with the definitions and examples that I’ve outlined so far, you will probably run into questions when it comes to having the employee prove that an “in loco parentis” relationship exists.

Unfortunately, the most you can require is a signed statement from the employee. You can’t require them to show financial records or proof of address.  

Preventing Abuse of “In Loco Parentis”

If you can’t require documentation, then how can you prevent your employees from abusing it?

The answer lies in your recruiting practices and your company culture . . .  

Are you regularly training your employees on honesty and ethics? Are you widely communicating that you value honesty in the workplace? Are you using interview strategies that identify honest, ethical behavior before you invite them into your organization?

If so, then you’ve got an employee base that is not going to take advantage of this, or any other, leave of absence or HR policies.

We hope you enjoyed reading our article on Defining FMLA's “In Loco Parentis”!

Leave Solutions is based in Milwaukee, WI and helps employers with their FMLA and leave of absence processes from a Human Resources perspective.

Contact us today at info@leavesolutions.com if you have questions on "In Loco Parentis" or other topics.



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