A closer look at in loco parentis
From the Latin, in loco parentis: In the place of a parent
Eligible employees are entitled to take leave under the federal Family and Medical Leave Act (FMLA) to care for a family member, which include spouses, children, and parents.
When it comes to parents and children, however, family members also include those who stood in loco parentis (in place of a parent) to an employee when the employee was a child. It also includes those for whom an employee will (or is) standing in loco parentis.
In loco parentis defined
According to the U.S. Department of Labor, in loco parentis refers to a relationship in which a person assumes the role and parenting responsibilities of a child who is under 18, or 18 years of age or older and incapable of self-care because of a mental or physical disability. The person is to have the day-to-day responsibilities to care for or financially support a child. Courts have indicated some factors to consider in determining in loco parentis status, such as:
- The age of the child;
- The degree to which the child is dependent on the person;
- The amount of financial support, if any, provided; and
- The extent to which duties commonly associated with parenthood are exercised.
Grandparents or other relatives, such as siblings, for example, may stand in loco parentis to an employee under the FMLA as long as the relative satisfies the in loco parentis requirements. No legal or biological relationship, however, is necessary. Anyone could stand in as a parent.
The fact that a child has a biological parent in the home or elsewhere does not prevent an employee from standing in loco parentis to that child. The FMLA does not restrict the number of parents a child could have. The specific facts of each situation will determine whether an employee stands in loco parentis to a child.
Employers may request documentation of family relationship the same as they may for an individual who asserts an in loco parentis relationship as it is for a biological, adoptive, foster, or stepparent. Such documentation may take the form of a simple statement from the employee asserting the relationship, particularly when there is no biological or legal relationship.
Such simple statements may include, for example, the name of the child or parent and a declaration of the employee’s in-loco-parentis relationship to the child or parent. An employee should provide enough information to help the employer determine if the employee could be entitled to FMLA leave. Employers may ask employees to put their statements in writing.
Key takeaway: Employees may take FMLA leave to care for individuals with whom the employees have an in loco parentis relationship, which could include those without a biological or legal relationship to the employee. Formal documentation might not exist, so employees could provide a simple statement.