TOP TIP: Employer’s Obligation to Seek More Information Regarding FMLA Request


Employers should be careful about automatically denying a request for leave to care for a family member under the Family and Medical Leave Act because the family member in question is apparently not a spouse, parent or child, as a recent case emphasizes.

The FMLA permits an employee to take leave in order to care for a “spouse, son, daughter or parent with a serious health condition.” In Coutard v. Municipal Credit Unionthe employee requested FMLA leave to care for his grandfather, and the employer denied the request on the grounds that the law does not apply to grandparents. The employee was then discharged for taking unprotected leave.

At issue was what notice the employee has to provide to the employer. The FMLA regulations provide that an employee must provide “sufficient information” for the employer to realize that “the FMLA may apply to the leave request.” The FMLA regulations further provide that if an eligible employee provides such information and the employer needs additional information in order to determine if the request is covered by the FMLA, it is the employer’s responsibility to seek such additional information.

The employee filed suit for violation of his FMLA rights, on the basis that he should have been informed by the employer that, under the FMLA, the definition of “parent” includes those who stand “in loco parentis,” meaning that they acted as a parent to the employee regardless of the legal relationship. (The definitions also includes biological, adoptive, step and foster parents). He further argued that the employer should have recognized that, because the FMLA “may” have applied to his leave request, the employer was required, under the FMLA to request further information from him regarding the relationship with his grandfather. The employer, on the other hand, argued that it had no obligation to inform the employee of the “in loco parentis” definition or to inquire further as to the relationship.

The U.S. Court of Appeals for the Second Circuit observed that, in enacting the FMLA, Congress specifically stated that the broad definition of “parent” was intended 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.’” Thus, the employee’s relationship with his grandfather was hardly “unique” and the employer had been given sufficient information to alert it to the fact that the FMLA “may” apply, which triggered its obligation to inquire further as to the relationship.

This case highlights the fact that the definition of “parent” and “child” under the FMLA is broader than the legal relationship. Thus, employers should not be too quick to decide that the FMLA does not apply to individuals who do not seem to fall within the parameters of a legal family relationship. Rather, the employer should ask further questions to establish whether an “in loco parentis” situation exists.