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Can I Take FMLA Leave to Care for My Significant Other’s Sick Child?

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Sheralee S. Hurwitz
Foster Swift Employment, Labor & Benefits Quarterly
Fall 2011

What do you do when an employee says he needs leave to care for his "significant other’s kids?"

If the employer is a covered employer (has 50 or more employees) and the employee is otherwise eligible for FMLA leave, then the first issue is whether the requested time off is for a qualifying FMLA reason. (Is the leave request due to birth of a child, placement of the child for adoption or foster care, or to care for a child with a "serious health condition"?) A request for leave to provide generic "childcare" is insufficient to be entitled to FMLA leave.

If the leave is for a qualifying reason, the next question is -- does the lack of a legal or biological relationship make a difference? It depends. An employer cannot immediately deny the FMLA leave because there is no "legal" or "biological" son or daughter relationship. The FMLA defines "son" or "daughter" to include "a child of a person standing in loco parentis." According to DOL Administrator Interpretive guidance, whether an employee stands in loco parentis to a child is a fact-dependent issue. FMLA regulations define in loco parentis as including day-to-day responsibilities to care for and financially support a child. An employee who has no biological or legal relationship to a child may nevertheless stand in loco parentis, and be entitled to FMLA leave, if he or she provides either day-to-day care or financial support to the child. The in loco parentis standard also may apply "for the birth of a child and to bond with a child within the first 12 months following birth or placement."

If the employer is unsure whether there is a sufficient parental relationship to require it to grant the leave, before making a decision, the employer may ask for confirmation of the family relationship. "[T]he employer may require the employee giving notice of the need for leave to provide reasonable documentation or statement of family relationship. This documentation may take the form of a simple statement from the employee, or a child’s birth certificate, a court document, etc. The employer is entitled to examine documentation such as a birth certificate, etc., but the employee is entitled to the return of the official document submitted for this purpose." 29 CFR 825.122(j).

The Administrator’s Interpretation also notes that "the fact that a child has a biological parent in the home, or has both a mother and a father, does not prevent a finding that the child is the ‘son or daughter’ of an employee who lacks a biological or legal relationship with the child for purposes of taking FMLA leave." The DOL’s position is that nothing in FMLA or its implementing regulations restrict the number of parents a child may have under FMLA.

Ultimately, the determination of whether the person requesting the leave stands in loco parentis to the child will depend on the particular facts. The DOL has granted this status, for example, to grandparents assuming on-going care for a grandchild where the parents cannot meet the standard. However, an employee taking care of a child while his parents are on vacation, will not meet the standard.

When faced with a questionable request for FMLA leave, employers should make sure they understand the facts, ask appropriate and permitted questions, and if in doubt, consult with your Foster Swift employment counsel regarding how to proceed.