The Family and Medical Leave Act (“FMLA”) grants certain employees up to twelve (12) weeks of unpaid leave to care for certain sick family members, including grandparents with whom the employee had an in loco parentis relationship as a child.

In Coutard v. Municipal Credit Union, 2017 U.S. App. LEXIS 2322 (2d Cir. Feb. 9, 2017), the employee sought FMLA leave to care for his seriously ill grandfather who had raised him as a son and had been a father figure to him. His grandfather also currently lived with him. Prompted by his grandfather’s bout with bronchitis, the employee did not want to leave him unattended and sought FMLA leave to care for him until he could secure the assistance of a home health aide. The employer denied his request, and when the employee remained at home to care for his grandfather, the employer terminated his employment. The employee then sued the employer alleging that the employer interfered with his rights under the FMLA.

The employer argued that the employee was not entitled to FMLA leave because grandparents are not covered family members under the FMLA and the employee did not tell the employer that his grandfather stood in as in loco parentis and had raised him as a son. Because the employee did not inform the employer of the in loco parentis relationship when he requested FMLA leave, the district court granted the employer’s motion for summary judgment.

On appeal, the Second Circuit Court of Appeals vacated the judgment of the district court and concluded that the employer should have asked the employee whether or not his grandfather stood in loco parentis to him when he was a child (i.e., ask him if his grandfather raised him) and that failure to do so may constitute a violation of the statute. Even though the employee never suggested that his grandfather stood in loco parentis to him as a child, the Second Circuit still nonetheless found that the employee had given adequate notice of his potential FMLA eligibility when he inquired about leave to care for his grandfather.

The court stressed that employees are only required “to provide sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request” and that employers are required to “inquire further” if it is necessary to gather more information about whether or not the employee is eligible for FMLA leave. “[I]n the absence of a request for additional information, an employee has provided sufficient notice to his employer if that notice indicates reasonably that the FMLA may apply.” The Second Circuit therefore found that the burden was on the employer to request additional information to determine if the employee was eligible for FMLA leave.

The Second Circuit also noted that the reason Congress included individuals who stood in loco parentis as covered family members under the FMLA 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 grandparents.”

If you believe that your employer has improperly denied your request for FMLA leave, we recommend consulting with a New York employment attorney as soon as possible to determine whether you have a claim under the FMLA.

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