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May 15, 2017

Unmarried employee entitled to FMLA when girlfriend gives birth?

Q&ALeave Laws 

Q: A female employee requested two weeks off to be with her pregnant girlfriend when she gives birth. The employee is not married or living with this girlfriend, and the baby is not biologically hers. Of course we will give her the time off, but does it count as FMLA?

A: Time off for the birth and to bond with the child may qualify as protected time under the federal Family and Medical Leave Act (FMLA). However, time spent caring for the employee’s pregnant girlfriend prior to giving birth would not qualify as FMLA (e.g. if the girlfriend was on bed rest during pregnancy). In order to qualify under the FMLA, the employee must be taking time off to care for a spouse, child or parent with a serious health condition. Since the employee is not married to her girlfriend, then the time spent caring for her during pregnancy prior to birth will not count as FMLA. The FMLA would allow the employee to take time off to attend the birth and to bond with the new child, if the employee intends to act as a parent to this baby by taking on day-to-day responsibilities to care for or financially support the child. If the employee is planning on acting as a parent to the child, then she may stand “in loco parentis” or “stand in the shoes of a parent.” Employees with an in loco parentis relationship to a child are entitled to the same FMLA rights and benefits as biological, step, adoptive or foster parents. The FMLA does not restrict the number of parents a child may have. The only documentation necessary to “prove” her in loco parentis status is a simple statement from her asserting that relationship.

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