What Every Employer Needs to Know About FMLA and the Aging Population

Contributed by Allison Chaplick

Current statistics show that 65.7 million Americans, or 29% of the adult U.S. population, serve as family caregivers for an ill or disabled relative. Two-thirds of these family caregivers are employed outside the home on a part-time or full-time basis. Given these statistics, chances are you probably have a family caregiver currently working for you, have had one, or inevitably will have one.

As the U.S. population ages, employers may find themselves in more situations where the Family Medical Leave Act (FMLA) http://www.dol.gov/whd/fmla/ is applying to them and their employees who are seeking to take a medical leave of absence to care for an aging parent.  The FMLA entitles eligible employees to twelve (12) workweeks of leave in a 12-month period for the employee’s parent who has a serious health condition.  For FMLA leave purposes, “parent” is defined broadly as a biological, adoptive, step, or foster parent, or an individual who stood in loco parentis to an employee when the employee was a child. Under the FMLA, persons who are in loco parentis include those with day-to-day responsibilities to care for or financially support a child, including grand-parents.  As of 2006, approximately 2.4 million grand-parents were primary caregivers of their grandchildren. Some factors to be considered in determining whether a person has in loco parentis status include:

  • the age of the child;
  • the degree to which the child is dependent on the person;
  • the amount of financial support, if any, provided; and
  • the extent to which duties commonly associated with parenthood are exercised.

What this means for an employer is that an employee is entitled to take FMLA leave to care for a person who stood in loco parentis to the employee when the employee was a child.  As an employer, you have a right to documentation that shows that the family member for whom the employee needs to take medical leave for is a “parent.”  This can be as simple as a statement from the employee describing the relationship the employee had with the person when the employee was a child.