While we all know that the Family and Medical Leave Act (FMLA) does not authorize leave to care for sick grandparents, you might not know that failing to grant such requests could land you in the FMLA dog house.
Frantz Coutard, an employee of Municipal Credit Union (MCU), was raised by his grandfather, Jean Manesson Dumond, for ten years after Coutard’s father died. Dumond even referred to Coutard as his son and moved in with him later in his life when he began to suffer a variety of physical ailments.
He put the “father” in grandfather
Dumond fell ill one night and had to be hospitalized. Upon Dumond’s discharge the next day, Coutard applied for FMLA leave so that he could stay home and care for Dumond until he could arrange for home health aide visits.
When asking for FMLA, Coutard never explained the special relationship he had with his grandfather and MCU officials never asked. Instead, they simply denied Coutard’s request on the grounds that FMLA does not apply to caring for sick grandparents. When Coutard remained at home to care for Dumond anyway MCU fired him, leading to a lawsuit for interference with FMLA rights.
Of course, FMLA does not explicitly authorize leave to care for sick grandparents. However, it does permit an employee to take leave to care for someone who served “in loco parentis” to the employee. The Department of Labor (DOL) defines this relationship to mean one where “a person puts himself or herself in the situation of a parent by assuming and discharging the obligations of a parent to a child.” In loco parentis status is typically determined by the extent of day-to-day care and/or financial support that is provided.
Why didn’t you say something?
Coutard essentially claimed that he gave the company enough information to know that his request potentially could be covered under FMLA due to the in loco parentis relationship with his grandfather. The only reason he did not provide more information was because MCU failed to inform him that his relationship with Dumond might qualify for coverage and also neglected to ask him any questions designed to elicit that information.
MCU countered, however, that they were under no obligation to educate employees on the intricacies of FMLA coverage. Instead, they provided all required FMLA notices and forms, and it was therefore Coutard’s responsibility to provide enough information to allow the employer to determine that the requested leave qualified for FMLA coverage.
The lower court agreed with MCU and dismissed the case prior to trial. On appeal, however, the Second Circuit Court of Appeals reversed, finding that Coutard satisfied his obligation under FMLA regulations to provide sufficient information to permit the employer to determine that FMLA “may apply.” At that point, the employer should have pursued the inquiry to resolve the question of whether the circumstances underlying Coutard’s request made it subject to FMLA eligibility.
Ask, and ye shall receive
MCU contended that providing FMLA information to employees should be sufficient and that they should not be punished for failing to anticipate unique situations like this. The Appeals Court disagreed, noting that the very reason for the existence of the in loco parentis provision was to “reflect the reality that many children in the United States today do not live in traditional ‘nuclear’ families with their biological father and mother, and are increasingly raised by others including their grandparent.”
The court therefore ruled that an employee is not required to provide the employer with all of the necessary details to permit a definitive determination of FMLA’s applicability. Instead, the court held that “in the absence of an employer’s request for additional information, an employee has provided sufficient notice to his employer if that notice indicates reasonably that FMLA may apply.” At that point, it is then incumbent upon the employer to determine for certain whether the request for FMLA leave must be granted.
This is a tough ruling for employers, who often must balance the need for due diligence on a FMLA request with the desire not to give the employee a roadmap for overreaching their FMLA rights. To be on the safe side, employers should be ready with follow-up inquiries whenever employees seek leave that does not appear, at first glance, to qualify for FMLA treatment.
To meet this obligation, an employer could start with open-ended inquiries like “tell me more about your relationship with your grandfather” or “what made your relationship with your Aunt Susan so special?” This might very well elicit enough information to determine whether or not there is an in loco parentis relationship. For example, responses such as “Grandpa was always very special and we used to go fishing together every Saturday” or “Aunt Susan was almost like a second mother to me” will make it clear that in loco parentis status does not exist. If more information is needed, the employer should ask more direct questions.
Finally, if you are wondering if you can rely on the fact that this is a 2nd Circuit decision that is not binding on Minnesota employers, you should know that the 8th Circuit (in which Minnesota sits) has issued very similar rulings.