Domestic partners and grandparents may now be eligible for leave under the Family and Medical Leave Act (FMLA). The United States Department of Labor (DOL) recently issued clarification on who may qualify to take leave under the FMLA. The FMLA provides employees up to 12 weeks of unpaid leave per year for the birth or adoption of a child or placement of a child in foster care. The FMLA defines a child as “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.” Until now, employers were unsure who exactly qualified for this leave beyond biological parents or legal guardians.
The DOL said that those who provide either financial support or day-to-day care for a child may be able to show an in loco parentis relationship. A person needs to show intent to assume the responsibilities of a parent. This determination is fact specific and requires a case-by-case analysis. Factors that may be considered include the age of the child, the amount of support provided, or how dependent the child is on the person. Even if a child has two biological parents, that does not preclude another person from claiming an in loco parentis relationship.
Examples of situations where the in loco parentis relationship may apply include an unmarried parent taking care of their partner’s child, same sex partners who adopt children, grandparents taking care of children whose parents are incapacitated, or an aunt raising a deceased sibling’s child. These situations would allow for the unmarried partner, same sex partner, grandparent, or aunt to take FMLA leave to care for the child. Not included in the expanded definition are persons taking care of another’s children while their parents are on vacation. For those of you who watch late night reruns or have a long memory, Opie’s Aunt Bee, from the Andy Griffith Show, would qualify – if she worked outside the home!
If an employee requests FMLA leave, an employer may require reasonable documentation or a simple statement stating the nature of the employee’s relationship to the child. It is important that employers with 50 or more employees remain up to date on the FMLA.
