CFRA Covered Employee’s Leave to Care for Adult Sister Prior to Expanded Law

By Joanne Deschenaux, J.D. October 4, 2021
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The California Highway Patrol (CHP) violated the California Family Rights Act (CFRA) when it fired a worker in 2014 after he took leave to care for his adult sister, a California appeals court ruled. The employee was entitled to take family leave because he stood "in loco parentis" to his sister, the court said.

In 2014, the CFRA did not cover an employee's leave of absence to care for a sibling. At that time, however, an employee was entitled to take leave to care for an adult dependent, including one to whom the employee stood in loco parentis.

An employee stands in loco parentis if he or she acts in the place of a parent or is otherwise charged with a parent's rights and responsibilities. Notably, there does not have to be a biological or legal relationship between the employee and the dependent.

In this case, the employee's immediate family included his mother and sister. He moved to the United States from Haiti in 1995. Eleven years later he began work as a CHP peace officer. Over the next eight years, performance reviews showed that he performed proficiently or higher in all categories.

The employee cared for his 80-year-old mother who lived with him. His sister, who had paranoid schizophrenia, remained in Haiti. The employee created a private health care facility for her in the family home. He traveled there frequently to help with her care. He maintained regular contact with his sister's treating physician, who considered him to be her caretaker.

The employee paid the property taxes on the family home. He also paid for his sister's food, daily necessities, medical care and health insurance. He employed and supervised an in-home caretaker for his sister.

On Nov. 9, 2014, the employee learned that his sister had left the family home and was wandering the streets of Port-au-Prince, Haiti. He was also told that local law enforcement required him to file a report in person as his sister's next of kin. Later that day, the employee told his supervisor that he might need an emergency leave of absence. He had previously taken emergency leave from his CHP duties to care for his sister, once in 2007 when she experienced a medical crisis, and again in 2010 after an earthquake.

The following day, the employee told his supervisor that his sister was missing in Haiti and requested a two-week leave of absence. His supervisor notified the CHP captain that the employee needed to "go out of the country to attend family matters." He left the next day, Nov. 11.

When the employee did not show up for work on Nov. 14, CHP labeled him absent without leave.

When the employee returned to work on Dec. 4, he submitted documentation about his leave, including:

  • Medical records confirming his sister's condition and ongoing medical treatment.
  • Police reports showing that he was his sister's next of kin and had initiated a police search to help find her.
  • Financial records demonstrating the employee's long-standing financial support for his sister.

CHP refused to accept or evaluate the documents. It initially assigned the employee to desk duty and later fired him.

The employee sued under the CFRA. The case went to trial, and the jury found in favor of the employee on all claims, including that he was eligible to take leave and that the CHP violated the CFRA by denying his leave request and firing him.

The CHP appealed, arguing, among other assertions, the employee was not entitled to CFRA leave because he did not stand in loco parentis to his sister. The appellate court disagreed and affirmed the jury's $3.9 million damage award and the trial court's judgment in favor of the employee.

Proof of In Loco Parentis Status

The court concluded that the evidence overwhelmingly supported the jury's determination that the employee stood in loco parentis to his sister. He provided for her on a day-to-day basis for nearly two decades. He paid for her housing and other essentials and wired money to her at least once a month. He paid for her medical care and employed and supervised an in-home caretaker. He regularly communicated with her doctors to understand and provide for her psychological and medical needs. He took frequent trips to the family home in Haiti to help care for her.

While he was in Haiti in the fall of 2014, the employee worked with police to locate his sister. And once she had been found, he escorted her to medical visits, filled her prescriptions and provided for her daily needs. Such evidence showed a continuous and permanent relationship between the employee and his sister, the court concluded.

Vincent v. Dept. of the Cal. Highway Patrol, Calif. Ct. App., No. B302026 (Aug. 31, 2021).

Professional Pointer: Effective Jan. 1, 2021, the CFRA added grandparents, grandchildren and siblings to the list of relatives for whose care an employee could take leave. If the events in this case happened today, the employee would not be required to satisfy the in loco parentis requirements. However, the analysis still applies to a request for leave to care for someone who does not fall into one of the relationship categories specified in the amended law. As the court mentioned, for the in loco parentis standard to apply, there need not be a biological or legal relationship between the employee and the person who needs care.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md. 

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