Employment Law Blog

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Jan 09, 2014

Who qualifies as a child under the FMLA?

Q&ALeave Laws 

Q: Our employee would like to take time off to care for her niece, who has a serious health condition. The niece lives with the employee, but there’s no legal guardianship arrangement. Can the employee take FMLA leave in this situation?

A: Yes. The federal Family and Medical Leave Act (FMLA) allows employees to take time off to care for their child with a serious health condition. “Child” is defined as biological, adopted, foster, step, or someone that the employee is “in loco parentis” with, which means they are acting as their parent. The child needs to be under the age of 18, unless they are incapable of self-care due to a disability. Under the FMLA regulations, someone acts as a parent when they are responsible for the day-to-day care and financial responsibilities of a child. The regulations specifically state that no legal or biological relationship is necessary. A recent lawsuit filed by the federal Department of Labor (DOL) illustrates how confusing this issue can be for employers. The employer denied an FMLA request because, after looking into the employee’s relationship with the child, it determined that the employee only had a temporary guardianship that wasn’t court-ordered. The DOL stepped in, seeking back wages and reinstatement for the employee, citing the FMLA regulations to show that the employee had an “in loco parentis” relationship with the child.

With this in mind, how do you handle a request for leave to take care of a child who doesn’t seemingly fit within the FMLA’s definition, and may not even be related to the employee? There may be lots of relationships that qualify as “in loco parentis,” but you wouldn’t know unless you ask the employee. It’s perfectly appropriate for you to ask whether the child lives with the employee or what kind of day-to-day care the employee provides for the child. You don’t need to dig into unnecessary details of the employee’s personal life, but you have the right to gather enough information to determine whether the FMLA may apply. For more on this topic, check out our member website, which contains a comprehensive library of FMLA resources, including Legal Guides, Model Policies and Model Forms.

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