Employee Unlawfully Terminated When His Employer Failed To Seek Necessary FMLA Information

by Abbey Moland

(402) 341-3070

Normally, an employee is required to present sufficient evidence to support his or her need for FMLA leave. However, a recent court decision found that an employer’s denial of leave to take care of an employee’s ill grandfather violated the FMLA when the employer failed to seek additional information to determine whether the employee had an “in loco parentis” relationship with his grandfather. The employee took the leave anyway and was terminated. The Court held that the leave request should have been approved.

The employee in Coutard v. Municipal Credit Union had been raised by his grandfather, due to the death of his father, since before he was 4 years old. The employee sought FMLA leave so that he could stay home to care for his grandfather, who was seriously ill, until he could secure the assistance of a home health aide. The employer denied the request since the FMLA does not apply to leave to care for grandparents. When the employee remained at home to care for his grandfather, his employment was terminated.

When the employee filed suit, the employer contended that it wasn’t obligated either to inform employee of FMLA coverage of an “in loco parentis” relationship or to grant the leave since the employee did not inform the employer of that relationship when he requested FMLA leave.

The trial court dismissed the lawsuit. However, upon appeal, the appeals court found that the employer was obligated to make further inquiry of the employee before rejecting his request under the FMLA. It pointed out that the employer is required to specify whether, and what, additional information is required to make a decision as to whether the employee was entitled to FMLA leave. It rejected the trial court’s finding of an absolute obligation on the part of the employee to supply the employer with necessary detail to make the decision on the leave request.

The decision in Coutard is instructive with respect to requests for FMLA leave for relatives who appear not be covered by the FMLA. The fact that the particular relative is not within the list of those relatives covered by the FMLA does not end the employer’s inquiry. Indeed, the Court here found that the employer had the obligation to make inquiry about the precise nature of his relationship with his grandfather to determine whether the grandfather was a qualified relative since he had acted in the place of the employee’s natural parents. The Court noted in passing that the inclusion of individuals who stand in loco parentis, whether relatives or not, within the coverage of the FMLA reflects the reality that in the United States many children who do not live in a traditional family setting are being raised by others, and that those individuals, in turn, may qualify as a covered “relative” under the FMLA.

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