Employee FMLA Question: Who is My Family?

Melissa Campbell
December 9, 2019

There will be many family gatherings during the holiday season, and employees may be asking who is considered family when it comes to eligibility under FMLA. The U.S. Census Bureau informs us that by 2030 all Baby Boomers will be over 65, that is, one in five residents will be of retirement age. This means an increasing number of younger family members may be called upon to care for aging relatives. A startling quote from the Bureau says, “The aging of baby boomers means that within just a couple decades, older people are projected to outnumber children for the first time in U.S. history.”

Employees may return from these family celebrations with questions about who qualifies as a relative for leave. This is a valid question, as definitions of family structure have changed. Employees should be aware that the FMLA provides up to 12 work weeks of job-protected unpaid leave to care for a spouse, son, daughter, or parent with a serious health condition, and they may have questions of who would be considered a parent in their family situation.

The Department of Labor Fact Sheet #28C* provides guidance. This fact sheet uses a broad definition of who is considered a parent. The parent can be either:

  1. Biological;
  2. Adoptive;
  3. Step;
  4. Foster; or,
  5. Loco Parentis.

Adoptive, Step, and Foster parents are defined by a documented legal action. It is important to note that an employee’s parents-in-law are not considered a parent qualifying them for leave under FMLA. The term loco parentis relates to an individual who provided parenting when the employee was considered a son or daughter and may qualify for FMLA leave when that parent requires care.

An employee may inquire if their relative meets the requirements under FMLA for the employee to benefit from unpaid leave to care for this individual. Each case will need to be evaluated upon its own specific facts. The primary establishing fact necessary for qualification of loco parentis is: was the employee a son or daughter when the relative provided parental care. Additional facts to consider as to whether the relative is considered loco parentis are:

  • Would the age of the employee at the time of care be consistent with being a son or daughter;
  • The extent of dependence of the employee on the care provided;
  • What was the degree or amount of support provided; and,
  • What was the scope of the duties provided by the relative commonly associated with being a parent.

The answers to these items will be a factor in the determination if the relative would be considered loco parentis and qualify the employee for leave. The relative could be: aunts and uncles, grandparents, or a same-sex partner who provided parenting to the employee as a child. The documentation from the employee can be a statement that includes: the name of the individual requiring care as well as information sufficient to indicate that the relative stood in loco parentis. Other standard FMLA documentation may also include a medical certification of the condition.

The change in the balance between the number of children and older parents is going to continue to widen. More employees may be asking questions about taking leave to care for a parent. Contact our specialists with questions or ask for a demo of the AbsenceSoft solution to get a better understanding of how it addresses employee questions.