Originally published October 2005
The Family and Medical Leave Act (FMLA) allows an eligible employee to take up to 12 weeks of leave in order to care for a parent with a serious health condition. A recent case decided in Maryland suggests that the definition of "parent" may be stretched to include family members who "act as a parent." (Dillon v. Maryland-Nat’l Capital Park & Planning Comm’n, No. 04-0994, (D.Md. 2005)
In 2002, Cynthia Dillion, a payroll clerk, requested three weeks of annual vacation in order to visit relatives in Jamaica. Her request was denied because of the volume of work at the time. Regardless, Ms. Dillon threatened to go on her vacation. It was during these discussions that Ms. Dillon mentioned that she was visiting her grandmother, but failed to mention her grandmother was ill. Ms. Dillon took her vacation anyway.
After the first week of her trip, Ms. Dillon contacted her employer to say she was still in Jamaica because her grandmother was very ill. Ms. Dillon failed to return to work after her scheduled leave, Ms. Dillon argued that her grandmother should qualify as a close family member for FMLA purposes because her grandmother had raised her. The employer, however, did not agree and terminated Ms. Dillon when she returned from Jamaica. The stated reason for the termination was being absent without approval.
Ms. Dillon sued her employer for violation of the FMLA. The employer attempted to dismiss the case through summary judgment, arguing that Ms. Dillon’s leave to care for a grandparent was not covered by the FMLA. The judge refused to dismiss the case. The judge stated that there were questions about whether Ms. Dillon’s grandmother acted as her parent to the level necessary for her to be considered a family member under the FMLA. Leave taken to care for grandparents can qualify, the court explained, if the grandparent acted "in loco parentis," or on behalf of the parents.
The court was unclear if an employee would need to inform the employer prior to leave that the grandparent acted as a parent. Specifically, the court questioned whether Ms. Dillon could use evidence that was not originally presented to her employer to support her position that the grandmother acted as her parent. The court found no case law preventing it from considering later testimony to bolster the claim and said that the evidence (the grandmother fed her, shared a bed with her and provided housing to her) was the kind of evidence that a jury could either believe or discount in determining whether FMLA applied to the leave. Importantly for employers, the decision would be left up to a jury.
This case emphasizes two important lessons for human resource professionals. First, human resource personnel should know that they may need to ask some additional questions if an employee requests leave because a close relative is ill. Second, human resource professionals need to be mindful that the FMLA is a relatively young employment law. This means it will go through changes. Keeping up to speed on these changes can save the company headaches later. Hopefully, new regulations the DOL is expected to soon issue to interpret the FMLA will help provide a better explanation of FMLA coverage for care for someone who "acts as" a parent. It remains unclear when the DOL will issue these new regulations, but we will let you know when they are released.
The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.
