DNA Diagnostics Center Improperly Denied FMLA Leave, DOL Finds

Author: Melissa Burdorf, XpertHR Legal Editor

December 11, 2013

The US Department of Labor (DOL) has filed a lawsuit against DNA Diagnostics Center, Inc. (DNA), after an investigation revealed that DNA illegally fired an employee who requested and took leave under the Family and Medical Leave Act (FMLA). In addition to seeking money damages, the DOL has asked the court to require DNA to reinstate the employee and order DNA to comply with the FMLA going forward. (e.g., by providing training for staff regarding the FMLA, reporting FMLA claims to the DOL and reviewing its policies. This case serves as another sign that employers need to be proactive as the DOL is continuing to make good on its promise to step up FMLA investigations and enforcement.

According to the DOL's complaint:

  • A DNA employee requested FMLA leave to care for her niece who was suffering from asthma and obstructive sleep apnea (both "serious health conditions" by the FMLA);
  • The employee was the temporary guardian of her niece, which involved daily caretaking responsibilities;
  • The employee provided HR with a completed health care certification and a copy of her guardianship papers;
  • HR reviewed the documents and denied the leave request because the employee's guardianship was only temporary and "not court-ordered";
  • The employee still took leave despite that DNA denied her request; and
  • DNA fired the employee for unapproved absences, stating that she "abandoned" her job.

If the court finds merit in the DOL's complaint, DNA has a problem. Under the FMLA, an otherwise eligible employee can take FMLA leave to care for a seriously ill minor child, even if the child is not the employee's biological or legal child, so long as the employee has day-to-day or financial responsibility for the child (i.e., the employee stands in loco parentis - in place of the parent). The court does not have to order the employee to be a legal guardian.

Employers should always consider the in loco parentis role when they receive an FMLA request to care for a child who is not the employee's biological or legal child (e.g., a stepparent, grandparent or domestic partner). The FMLA does not limit the number of "parents," or individuals that may have the status of standing in the place of a parent, for a particular child. The DOL has gone as far as saying that an employee can have in loco parentis status even if he or she does not intend to have a permanent parental relationship with the child (i.e., when an employee takes care of her grandchild because the child's parent is on active military duty).

When an employer receives a request from an employee who is not a child's parent but stands in a parental role, the employer should go through its normal FMLA procedures. These should include obtaining a simple statement from the employee asserting that the required in loco parentis relationship exists. The statement should include:

  • The child's age;
  • How dependent the child is on the person claiming in loco parentis status;
  • The extent to which the person claiming in loco parentis status actually exercises, or tries to carry out, parental duties; and
  • The amount of financial support, if any, provided by the employee.

If the employee is standing in the parent's shoes, the employer should view the employee's FMLA request as though the employee is the parent.

The start of the impending new year is the perfect time for employers to review their FMLA policies and procedures to ensure FMLA compliance and, more importantly, to avoid DOL scrutiny.