Taking care of older parents or elder care by adult children in the workforce is more common than before as individuals retire later in life. The Family and Medical Leave Act (FMLA) allows certain employees who need to take time off from their employment for elder care to care for a seriously ill parent and certain other relatives. However, not all employees are entitled to such leave, and not all employers are required to give such time to workers for elder care and the care of older parents.
An eligible worker is entitled to take FMLA leave to care for a person who provided such care to the worker when the worker was a child. Suppose the person stood in loco parentis to the employee while the employee was a child. In that case, the employee might be entitled to take FMLA leave even if they also have a biological, step, foster, or another parent, provided that the in loco parentis relationship existed between the employee and the person when the employee met the FMLA’s definition of a “son or daughter.”
Under FMLA, “in loco parentis” exists when a person intends to take on the role of a parent. It applies to the type of relationship in which an individual has placed themself in the role of parent by assuming and discharging the duties and obligations of a parent to a child. An “in loco parentis” relationship might exist even if the child had a biological parent.
The statute’s regulations define in loco parentis as including individuals with day-to-day duties to financially support a child care or daily care for the child. Courts in interpreting the FMLA have indicated some elements they consider in resolving whether in loco parentis status exists are:
Under the FMLA, “parent” does NOT include the employee’s parents-in-law, even though a stay-at-home spouse may realistically be the best and sometimes only one who has the time and skill to provide such care. Under the state statute, the California Family Rights Act (CFRA), a parent-in-law IS included under “immediate family member.”
The Family and Medical Leave Act (FMLA) does not include relationships with in-laws. It allows workers unpaid time off to care for children, spouses, or parents or to deal with their own medical needs. But in-laws are not mentioned.
The FMLA does not give you the legal privilege to take time off to take care of your mother-in-law. But you may be able to get your employer to give you unpaid time off, particularly if other workers have received similar leave. Because parents are covered in the FMLA, your husband might have a right to take leave to care for his mother.
Suppose your employer denied you time off to take care of a seriously ill parent or other relatives. In that case, you need to contact an experienced and competent employment attorney at Minnis & Smallets who will be aggressive about enforcing your rights.
Every situation is fact-specific, and if you are a person who believes you may be the target of the employer’s illegal acts, don’t hesitate to contact us today for a free consultation.
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