Under the FMLA, eligible employees can take leave to care for a “parent,” which can include an individual who stood in loco parentis to an employee, such as someone who took care of the employee when the employee was a minor; however, the FMLA does not extend similar protection to care for a grandparent. Nonetheless, in Coutard v. Municipal Credit Union, __ F.3d ____ (2nd Cir 2017), 2017 WL 526060, the Court held that, before denying FMLA leave to care for a grandparent, the employer must confirm that the grandparent does not qualify as a parent under the in loco parentis rule.

In Coutard, the employee sought FMLA leave to care for his seriously-ill grandfather. Significantly, the employee never indicated, or otherwise provided any information to suggest that his grandfather had raised him. MCU denied the request because FMLA leave is not available to care for a grandparent. The employee took no further action with respect to his FMLA leave request, but still stayed at home to care for his grandfather. When the employee was absent for more than 2 consecutive days, MCU terminated his employment due to job abandonment.

The employee subsequently filed a lawsuit against MCU claiming that it violated his rights under the FMLA. The district court dismissed the case, agreeing with MCU’s position that it properly denied the request because the employee admittedly provided no information suggesting that his grandfather had raised him as a child, and that it was under no obligation to seek out such information.

On appeal, the Second Circuit Court of Appeals disagreed and reinstated the lawsuit. The court concluded that once MCU knew the employee was seeking FMLA leave to care for a grandparent, the employer had a duty to inquire as to whether the grandparent qualified as a parent under the in loco parentis rule. The Court reasoned in pertinent part as follows:

Thus, whether or not the DOL form is used, a covered employer “must” inform employees both (a) that they need provide only sufficient information to show that the requested leave reasonably “may” be FMLA-qualifying, and (b) that if an eligible employee provides such information and the employer needs additional information it is the employer’s responsibility to seek such additional information

In light of these regulations, we conclude that the obligation of an employee to give notice of his need for FMLA leave is not the obligation, imposed by the District Court on [the employee] to provide the employer with all of the necessary details to permit a definitive determination of the FMLA’s applicability at or before the time of the request. Rather, in the absence of a request for additional information, an employee has provided sufficient notice to his employer if that notice indicates reasonably that the FMLA may apply.

In other words, if additional facts may show that the employee is eligible for FMLA leave, the employer “must” specify whether and what additional information is required to make such an eligibility determination. The Court emphasized that this was consistent with the purpose and intent of the FMLA:

The very reason that Congress and the FMLA defined “parent” and “son or daughter” to include respectively, “an individual who stood in loco parentis to an employee when the employee” was “under 18 years of age” and “a child of a person standing in loco parentis,” was to “reflect the reality that many children in the United States today do not live in traditional ‘nuclear’ families with their biological father and mother,” and are increasingly raised by others including “the grandparents.”

Based on the Coutard decision, employers should do two things. First, employers should ensure that they educate employees – in handbooks, policies and/or required notices, about their rights under the FMLA – so that the employees know what information they should provide when making a request for FMLA leave. Second, employers should revisit their FMLA leave request procedures and policies to ensure that they are properly following up on requests when additional information may reveal that the leave should be approved. Indeed, the Coutard decision makes clear that employers generally should not simply rest on an employee’s failure to initially supply information that could qualify them for FMLA leave.