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For Which Family Members Can An Employee Take FMLA Leave?

For Which Family Members Can An Employee Take FMLA Leave?

For whom an employee can take leave under the FMLA depends in part on whether the leave is related to (1) a family member's serious health condition, or (2) a covered servicemember's or former servicemember's serious injury or illness.

Serious Health Condition - Family Members

Under the FMLA, an employee can take a protected leave when it is necessary to care for a spouse, including a same sex spouse, child, or parent with a serious health condition.

The law is very specific about exactly what individuals fall within the definitions of spouse, child and parent.

A spouse is someone who is legally married. This includes same-sex marriages and common law marriages in states where it is recognized.

A child is defined as a person who is a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person "standing in loco parentis", when that person is under the age of 18 years. If a person meeting one of these criteria is age 18 or older, he or she is only considered a "child" under FMLA if he or she is incapable of self-care due to a mental or physical disability.

"Standing in loco parentis" is defined as having day-to-day responsibilities to care for and financially support a child. A biological or legal relationship is not necessary.

In the case of children age 18 or older, incapable of self-care due to a mental or physical disability means that the individual requires active assistance or supervision to provide daily self-care in three or more "activities of daily living" or instrumental activities of daily living". These activities include things like bathing, dressing, eating, cooking, cleaning, shopping, etc. Further, a mental or physical disability means a disability as defined under the Americans with Disabilities Act (ADA).

The ADA defines disability as a physical or mental impairment which substantially limits one or more of the major life activities of an individual. The age of onset of the disability is irrelevant to this analysis. Further, the disability may be - but need not be - the FMLA serious health condition.

A parent is defined as a biological parent or an individual who stands or stood in loco parentis to an employee when the employee was a son or daughter (as defined above). This term does not include "parent in law".

Serious Injury or Illness - Next of Kin

Under the FMLA, an employee can take a protected leave when it is necessary to care for a covered servicemember or former servicemember with a serious injury or illness incurred in the line of duty. In order to be eligible to take this type of FMLA leave, the employee must be the covered servicemember's or former servicemember's (1) spouse, son, daughter, or parent, or (2) next of kin.

A "covered former servicemember" is defined as a "covered veteran." A "covered veteran" is defined as a member of the Armed Forces, National Guard, or Reserves who was discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care for the covered veteran.

A "son or daughter" of a covered servicemember means a biological, adopted, or foster child; a stepchild; a legal ward; or a child of a person "standing in loco parentis." The age of the son or daughter is not a factor.

A "parent" of a covered servicemember means (1) the biological, adoptive, step or foster father or mother, or (2) any other individual who stood in loco parentis. This term does not include "parent in law".

"Next of kin" means the nearest blood relative, (1) other the covered servicemember's or former servicemember's spouse, parent, son or daughter, (2) unless the covered servicemember or former servicemember has designated in writing a blood relative for purposes of military caregiver leave under the FMLA, and (3) means the following people in the following order of priority:

  • Blood relatives granted legal custody of the covered servicemember or former servicemember by a court decree or statutory provisions
  • Brothers and sisters
  • Grandparents
  • Aunts and uncles
  • First cousins

The employer may require proof of the family relationship to the covered servicemember.

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