Although many employees have heard of the Family and Medical Leave Act(FMLA), some may not understand the specific rights provided by this important federal legislation. The FMLA entitles eligible employees of covered employers to take twelve weeks of unpaid, job-protected leave for certain personal and family medical reasons. These include the birth and care of a child, a serious health condition of an employee's family member, and a health condition that significantly affects job performance. Invariably, one of the most common questions asked by employees is: "What family members count under the FMLA?"
One of the provisions of the FMLA is an allowance for an employee to take leave from work to "care for the employee's spouse, child, or parent who has a serious health condition."
- Parent: Parent means a biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the employee when the employee was a son or daughter. This allowance does not include parents "in law."
- Son or Daughter: A son or daughter is a biological, adopted, foster child, stepchild, legal ward, or child or a person standing in loco parentis who is either under age 18, or is 18 or older but is incapable of self-care because of a physical or mental disability.
- In Loco Parentis: In loco parentis is a special relationship in which a person has put himself or herself in the situation of a parent by assuming and discharging the obligations of a parent to a child with whom he or she has no legal or biological connection. It exists when an individual intends to take on the role of a parent, and take on the day-to-day responsibilities that a parent would normally assume. Some courts have extended this to nieces, nephews, siblings, grandchildren, and biological children of a co-parent in a same-sex relationship.
- Some factors relevant in the consideration of whether an employee stands in loco parentis include the age of the child, the degree to which the child is dependent on the person, the amount of financial support by the employee, and the extent to which duties commonly associated with parenthood are exercised.
Although many simply assume that their situation would not allow them to utilize the benefits provided by the Family and Medical Leave Act, there is no bright line rule for when a family member may fall into one of these categories. Since the specific facts of each situation will be analyzed by the U.S. Department of Labor, every employee should speak with an attorney before seeking to exercise their rights under the Act. Eligible employees may be entitled to receive twelve weeks of job-protected unpaid leave.