Caught in the Middle: FMLA Rights When Caring for an Aging Parent
FMLA and Family Care: The Basics
The FMLA was enacted to protect employees in certain situations from losing their job as a result of having to take time off to care for an ill or injured family member. To be eligible for FMLA leave, the employee must be considered a “covered” employee under the FMLA’s provisions, and the situation requiring leave must be within the scope of the FMLA’s terms.
To be eligible, an employee must be:
- Employed in a public agency, including all elementary and secondary schools, or;
- Employed by a private company with at least 50 employees.
- Eligibility also requires the employee to have worked 12 consecutive months and 1,250 annual hours for the employer.
The FMLA allows an eligible employee to take up to 12 weeks off to care for a sick relative without fear of losing his or her job. Under the Act, the relative must be an “immediate family member”, which includes parent, spouse, or child.
Caring for Parents
If an employee meets the eligibility requirements of the FMLA, the Act unequivocally covers leave to care for an aging parent. The statute defines a “parent” to include biological, adoptive, step-, or foster parents. It also includes any person who acted “in loco parentis” over the employee during his or her childhood. This term refers to the arrangement wherein an adult has cared for a child despite having no biological or legal requirement to do so. Loco parentis cases are generally decided under the individual facts of each situation; however, the Department of Labor has offered the following examples of cases that could give rise to FMLA protections:
- Caring for an ill aunt or uncle who, when the employee was a child, tended to the employee’s daily needs
- Caring for an ill grandparent who assumed the day-to-day childcare duties for the employee as a child either due to the death or absence of the child’s actual parents
- Caring for a same-sex parent who, due to the laws at the time the employee was a child, was never granted rights as a parent
If you are in need of leave from your job to care for an aging parent, we encourage you to speak with one of our employment attorneys as soon as possible.
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