Monday, August 15, 2011

Employee required to provide adequate notice of in loco parentis status of an individual if seeking FMLA leave

Employee required to provide adequate notice of in loco parentis status of an individual if seeking FMLA leave
Copyright © 2011. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

The FMLA allows an eligible employee of a covered employer to take FMLA leave to care for a covered family member, including a parent.  A "parent" includes a biological, adoptive step or foster mother or father, or any other individual who stood in loco parentis to the employee when the employee was a son or daughter (e.g., under 18 years of age, or over 18 years of age an incapable of self-care due to a disability).  29 CFR 825. 122(b).  In loco parentis means that the individual had day-to-day responsibility to care for or financially support the employee when the employee was a son or daughter.  29 CFR 825.122(c)(3). 

To invoke the protections of the FMLA, the employee must notify his or her employer of the need for FMLA-qualifying leave.  The FMLA's notice requirements are not onerous.  Basically, the employee must provide adequate information to apprise the employer that the leave may be in need of FMLA leave. An employee need not invoke the "FMLA" by name.  If the employer needs more information to determine whether the leave is covered by the FMLA, they are required to inquire further.  

In Ruble v. American River Transportation Co., No. 2:10 CV 24 DDN (E.D. Mo. June 29, 2011), Jack Ruble notified his supervisor (the boat captain) that his 90-year-old grandmother was ill and that he may need to leave the boat during the voyage.  It was uncontested that Ruble's grandmother took exclusive care of Ruble when he was a child for several years. 

During the voyage, Ruble was notified by his family that his grandmother had been diagnosed with terminal cancer and was not expected to live more than a week.  That day, he told the boat captain that his grandmother had terminal cancer, that she was not expected to live more than a week, and that he wanted to leave the boat.  Ruble and the crew lived on the boat during the voyage.  Under Company policy, leaving the boat during a voyage without approval was grounds for removal.  The boat captain referred Ruble to the Company Personnel Manager, whom Ruble called and explained the situation. 

Ruble told the Personnel Manager that his grandmother was ill and he needed to go see her before she died because she had taken care of him.  He delayed leaving the vessel for a few days while the Company tried to secure a replacement.  The Company asked Ruble to wait one more day for the replacement before leaving the boat.  Ruble declined, and flew home.  He did not, however, see his grandmother at the hospital until the following day. 

Ruble's grandmother was discharged from the hospital a few days after he arrived.  She stayed with her daughter, who was primarily responsible for her care.  Ruble's grandmother did not live with him at his home near or before her death.  Ruble stayed by his grandmother's side throughout her hospital stay, providing psychological comfort, and care.  He also spent almost every day with his grandmother while at Shipley's house.  Ruble's grandmother died on May 18.  

Ruble was terminated from employment for leaving the boat without authorization during the voyage.  He sued, alleging that his termination violated the FMLA.  The Company moved for summary judgment to dismiss the case, arguing that Ruble failed to provide adequate notice that the leave may be FMLA-qualifying. The Company argued that Ruble failed to adequately notify it that his grandmother was his in loco parentis parent while Ruble was a child.  Absent an in loco parentis relationship, the FMLA does not entitle an employee to take leave to care for a grandparent.

The Court opined:

When an employee seeks to invoke FMLA benefits based on an in loco parentis relationship, the employee must provide his employer with sufficient facts indicating that such a relationship may exist. See Sherrod v. Philadelphia Gas Works, 57 Fed. Appx. 68, 72-73 (3d Cir. 2003)("Since [the employee] did not initially tell her employer that her grandmother had raised her, she failed to sufficiently explain her reasons for the needed FMLA."); Abousaidi v. Mattress Discounters Corp., No. 1:05CV1142 (JCC), 2005 WL 3797366, at *2 (E.D. Va. Dec. 8, 2005).  Otherwise, the employer could not know that the employee's leave may be secured by the FMLA. See Wierman,638 F.3d at 1000 (the employer's duties do not arise until the employee gives sufficient information to who that he may be in need of FMLA leave).

The Court found that Ruble's assertion that he told the Personnel Manager that his grandmother "took care of him," coupled with his more effusive affidavit on the subject, created a genuine issue of material fact regarding the adequacy of Ruble's notice sufficient to defeat the Company's motion for summary judgment. 

Mr. Bosland comments:  To secure the benefits and protections of the FMLA, an employee requesting FMLA leave to care for an in loco parentis parent must articulate some facts to put the employer on reasonable inquiry notice that the leave might be FMLA qualifying.  An in loco parentis parent does not have to involve a legal or biological relationship.  All that is required is that the individual had responsibility to care for and/or financially support the employee when the employee was a son or daughter within the meaning of the FMLA.  Absent a biological or legal relationship, it may not be obvious to an employer that a grandparent, older sibling, uncle, aunt, or someone else cared for the employee when the employee was a child.  While an employee need not affirmatively assert an in loco parentis relationship (although they certainly could do so), the do need to articulate some facts suggesting an in loco parentis relationship.  If the employer needs additional information to confirm an in loco parentis relationship, the burden is on the employer to inquire further.

As demonstrated in Ruble, the notice bar on this issue is relatively low (e.g., my grandma took care of me).  It is not, however, non-existent.  Employers, in turn, must be alert to in loco parentis relationships as a qualifying basis for FMLA leave.  When in doubt, ask the employee to clarify the nature of what might be an in loco parentis relationship.    

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