In Loco Parentis and Non-Traditional Caregiving Relationships

by Gail Cohen, Esq. - Assistant General Counsel Employment and Litigation

February 04, 2020


Recently, an Ohio federal district court heard a lawsuit filed by an Apple employee whose sister was terminally ill and claimed FMLA entitlement for his request to care for his nieces and nephews. The case, Brede v. Apple, involved a claim of FMLA interference and retaliation by a former Apple employee who worked in one of its stores at the Genius bar. That employee, Edward Brede, had requested one day of intermittent “FMLA” every 2 weeks to care for his seriously ill sister’s children. Apple granted his request under its Paid Family Care policy. After Brede was fired for violating company policy, he brought this lawsuit.

The district court granted Apple’s motion to dismiss the case.

In granting the motion to dismiss, the court took as true Brede’s claims of an in loco parentis relationship with his nieces and nephews. Even assuming that was the case, however, Brede can only take FMLA if the purpose of him doing so was to care for those children who needed care due to a “serious health condition;” and he did not ever indicate any of them did. Rather, the purpose of his request for time off was to care for them because his sister could not. Moreover, the court reasoned that if Brede had requested FMLA to care for his sister, who did have a “serious health condition,” he could only do so if he stood in loco parentis to her.

The FMLA defines a “parent” to include “an individual who stood in loco parentis to an employee when the employee was a son or daughter,” and similarly, a “son or daughter” is defined to include “a child of a person standing in loco parentis.” Employees who stand in loco parentis to a child can take FMLA to care for that child with a serious health condition and to care for an individual who stood in loco parentis when the employee was a child, when that “parent” has a serious health condition. The regulations go on to define persons who are in loco parentis as “those with day-to-day responsibilities to care for and financially support a child.”

The DOL has two (mostly) helpful Fact Sheets (#28B and #28C) that discuss in loco parentis. However, the DOL takes a broad view of who can take FMLA, stating in the fact sheets that it includes someone who has day to day responsibilities to care for a child OR financially supports a child.  As you can see from the regulations excerpted above, the FMLA actually requires BOTH.

There are not many court cases on record about the in loco parentis relationship. We previously blogged about Coutard v. Municipal Credit Union, in which the 2nd Circuit concluded an employee who sought time off to care for his grandfather provided sufficient notice to his employer of his need for FMLA. In reaching that conclusion, the court reasoned that it was incumbent upon the employer to dig further to determine whether his grandfather stood in loco parentis to him (which he, in fact, did, having raised the employee after his parents’ death).

Pings for employers

  • Be familiar with the two DOL Fact Sheets linked above. Despite that one glitch in expanding the scope, the Fact
    Sheets are otherwise quite helpful.  In particular, they offer these factors for consideration in assessing ILP status:

    • the age of the child;
    • the degree to which the child is dependent on the person;
    • the amount of support, if any, provided; and
    • the extent to which duties commonly associated with parenthood are exercised.
  • When an employee indicates he or she is seeking leave to care for a family member that is not a specific FMLA
    covered relationship (i.e., parent, son or daughter, or spouse), talk to the employee about his or her relationship
    to that individual.
  • If the employee is requesting time off to care for a “parent”, like the Coutard matter, ask:
    • Did the relative care for him or her as a child OR provide financial support?
    • Do they reside together, or did they do so in the past?
  • If the employee is requesting time off to care for a “child” (as in the Brede case), include:
    • Has the employee assumed daily responsibility for care for or financially support the child?
    • Does the employee intend to assume a “parenting” role and if so, is there a permanent intent to do so?

Consider state leave laws also

This discussion is focused on FMLA, but it is important to remember that many of the state FMLA-like leave and paid family and medical leave laws include care for family members beyond the traditional definition in FMLA. Common additions include grandparents, grandchildren, siblings, and – our favorite – the “like a family member” relationship.  For example, New Jersey allows leave for any individual with a close association with the employee equivalent to a family relationship.

In general, because of this expanded focus at the state leave level to recognize the non-traditional nature of evolving families, it is critical for employers to keep an open mind about these requests and ferret out the right facts to ensure they are providing employees with the leaves to which they may be entitled.


Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at [email protected].