Labor & Employment Law Daily FMLA didn’t entitle employee to leave to care for sick sister’s healthy kids
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Thursday, January 30, 2020

FMLA didn’t entitle employee to leave to care for sick sister’s healthy kids

By Marjorie Johnson, J.D.

Even though the employee alleged that he stood in loco parentis to his niece and nephew, and that his sister was seriously ill, he did not and could not allege any entitlement to FMLA leave in these circumstances.

An employee who requested FMLA to care for his niece and nephew due to his sister’s serious medical condition and was subsequently denied a promotion and terminated, failed to plausibly allege claims of FMLA interference and retaliation. Granting the employer’s motion to dismiss and denying his motion to amend his pleadings, a federal court in Ohio ruled that he could not make the requisite showing that he sought leave for a FMLA-qualifying reason since, although he alleged that he stood in loco parentis to the minor children, he did not claim that they were experiencing a “serious health condition” that required his care (Brede v. Apple Computer Inc., January 23, 2020, Lioi, S.).

Adverse actions after seeking leave. The employee requested intermittent FMLA leave—about one day every two weeks—to care for his niece and nephew because of his sister’s serious medical condition. He claimed that over the next several months he was denied a promotion because of his “inability to come to work” and given a negative performance review due to “spotty attendance.” Then shortly after he renewed his leave request, he was terminated for purportedly violating company policy by improperly handling a customer’s computer hard drive.

Must show FMLA-qualifying leave. To prevail on either his FMLA interference or retaliation claim, the employee was first required to prove that he was entitled to FMLA leave. Thus, at issue was whether he plausibly alleged that he sought leave for an FMLA-qualifying reason, which meant that he “was legally entitled to protected medical leave, and not merely that it was graciously provided” by the employer. His claim was legally doomed in this regard since he failed to allege any entitlement to FMLA leave, nor could he amend his complaint to do so.

Stood in ‘loco parentis’ to sister’s children. Because the parties did not dispute whether the employee was an “eligible employee” of an “employer” within the meaning of the FMLA, at issue was whether he sought leave for one of the FMLA-qualifying reasons. These reasons include “care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.” The term “son or daughter” means “a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is—(A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability.”

But was sister who was seriously ill. Here, the employee claimed that his leave was classified under the FMLA as in loco parentis, “to care for his niece and nephew because of his sister’s serious medical condition.” However, the flaw in his argument was that despite his “in loco parentis” allegation his requested leave to care for his sister’s children was not FMLA-qualifying.

Significantly, he did not allege that either of the minor children (who would be considered his daughter and sons under in loco parentis) were experiencing a “serious health condition” that required his care. Rather, it was his sister that had the serious health condition. And even if his care of the children could be seen, by extension, as care for his sick sister (and he cited no legal authority for that proposition), the FMLA does not entitle an employee to leave to care for a sibling with a serious health condition.

Request to amend denied. Because the employee did not and could not allege that he was entitled to FMLA leave to care for his sister’s children, he failed to plausibly allege violations of the FMLA under either theory. Moreover, his proposed amendment would neither remedy that flaw nor render the employer’s motion to dismiss moot. Accordingly, the court denied the employee’s motion to amend and granted the employer’s motion to dismiss.

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