The federal Family and Medical Leave Act (FMLA) requires employers to provide employees with 12 weeks of unpaid but job-protected leave each year for qualifying situations, including for the birth or adoption of a child, for the employee’s own serious health condition, or for an employee to care for an immediate family member with a serious health condition. Who is an immediate family member? The FMLA, by its own terms, says it is a spouse, son, daughter or parent of an employee. But how do we define those terms? What kind of proof of these family relationships may an employer require?

Background

One of the purposes of the FMLA is to give employees a reasonable, but limited, amount of time off to care for an immediate family member with a serious health condition without losing their job. For a discussion of the meaning of the term serious health condition, see here. Employers may require a medical certification of the serious health condition from the family member’s treating healthcare provider. See here and here.

Determining whether a serious health condition really exists is an important question. Here’s another one: who is a spouse, son or daughter, or parent?  Although we think we know what “spouse,” “son or daughter” and “parent” mean in the context of everyday conversation, the potential for confusion becomes apparent when FMLA leave is at stake. Does spouse mean only a person to whom the employee is legally married? Are common law spouses included? What about a domestic partner who is very much like a spouse? Does child mean only a minor child? What about adult children of an employee who need their care? And parent – does that include in-laws? This blog post will discuss the legal meaning of the terms “spouse” and “son or daughter” for FMLA purposes.

Who is a Spouse?

The text of the Family and Medical Leave Act at 29 U.S.C. § 2611(13) defines “spouse” as a husband or wife. The regulations expand on that definition, explaining that husband or wife means a person with whom the employee has entered into marriage as defined or recognized under any state’s law. It includes same-sex marriages, as well as common law marriages entered in a state that recognizes common law marriage. North Carolina, however, does not recognize common law marriages. See here. So North Carolina employers cannot grant FMLA leave requests to employees who seek leave to care for a partner to whom they are not legally married. If evidence of the employee’s marriage is not already in the employee’s personnel record, the regulations allow the employer to ask for documentation of the marriage.

Who is a Son or Daughter?

The FMLA provides leave to take care of a “son or daughter” with a serious health condition and defines “son or daughter” as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis,” who is either younger than 18 years old, or 18 years or older but incapable of self-care because of a mental or physical disability. This definition contains terms that themselves must be defined to fully understand the scope of the FMLA’s reach.

Adopted

Some people may use the term “adopted” to refer to a minor child whom they have taken into their home. But for FMLA purposes, “adoption” means “legally and permanently assuming the responsibility of raising a child as one’s own.” In other words, there must be a legal proceeding establishing the adoption. See here at subsection (f).

Foster Child

Similarly, some people may use the term “foster care” to refer to a minor child for whom they have temporarily taken responsibility. Here, too, the FMLA regulations require state action for the relationship to be recognized. “Foster care” is defined as “24-hour care for children in substitution for, and away from, their parents or guardian.” This definition of foster care requires two types of state action to have occurred. First, there must be either an agreement between the state and a child’s parent or guardian, or a judge’s decision that foster care is necessary. Second, there must be an agreement between the state and the foster family. Although foster care may be with relatives of the child, state action is still required for a foster care situation to qualify for FMLA leave for the serious health condition of an employee’s son or daughter. See here at subsection (g).

In Loco Parentis

A person who is acting in loco parentis may also take FMLA leave to care for a child with a serious health condition. In loco parentis is a legal term derived from the Latin phrase meaning “in the place of a parent.” 29 CFR § 825.122(d)(3) defines the term this way:

Persons who are “in loco parentis” include those with day-to-day responsibilities to care for and financially support a child . . . . A biological or legal relationship is not necessary. (emphasis added)

In determining whether an employee has an in loco parentis relationship with a child, courts look to the intention of the employee to assume the status of a parent toward the child. An employee may assume the care and custody of another’s child (including care of their own grandchild) under circumstances that are consistent with the continued existence of the actual parent-child relationship and without any intention to end that relationship. See here for a more detailed discussion of the in loco parentis relationship.

Documenting an Employee’s Relationship with a Son or Daughter

As is the case with FMLA leave to care for a spouse, an employer may require an employee requesting to leave to care for the serious health condition of a child to provide documentation of the parent-child relationship. A child’s birth certificate or, in the case of an adopted child or a child in foster care, a court document will suffice. In the case of an employee standing in loco parentis to a child, a simple written statement from the employee is sufficient to satisfy the regulations. See here at subsection (k).

Adult Children Incapable of Self Care

The FMLA permits employees to take job-protected leave to care for a minor child with a serious health condition. It permits employees to take job-protected leave to care for an adult child with a serious health condition only when that child is incapable of caring for themselves because of a mental or physical disability. It is easy to determine whether a child is younger than 18 years old, but whether an adult child is not capable of caring for themselves because of a mental or physical disability is a more difficult question.

For starters, the FMLA regulations say that the definition of a mental or physical disability is the same as that found under the Americans with Disabilities Act – that is, a physical or mental impairment that substantially limits a person in the performance of one or more major life activities. See here at subsections (d)(1) and (2). For the ADA definitions, see here at subsections (h), (i) and (j). In other words, the standard goes beyond asking whether an employee’s adult child has a serious health condition. The employee’s adult child must have an ADA disability that is the cause of that child’s inability to care for themselves while they have a serious health condition.

The FMLA regulations define “incapable of self-care” as meaning:

the individual requires active assistance or supervision to provide daily self-care in three or more of the activities of daily living (ADLs) or instrumental activities of daily living (IADLs). Activities of daily living include adaptive activities such as caring appropriately for one’s grooming and hygiene, bathing, dressing and eating. Instrumental activities of daily living include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, using a post office, etc.

In addition to the adult child having a disability, for FMLA leave to available for the parent, the child must need active assistance in taking care of themselves or in accessing the kinds of places or services that allow an adult to care for themselves and their affairs. Employees may take FMLA leave to care for an adult child with a disability who needs assistance in bathing, dressing or eating because of a disability. They may also take FMLA leave for an adult child with a disability who is able to bathe, dress and eat but who requires assistance in shopping and cooking, for example, in getting from one place to another, or in managing their financial affairs. See here. Whether an adult child has a disability and is incapable of self-care is assessed at the time that FMLA leave begins.

As with any form of FMLA leave for a serious health condition, the employer is entitled to a medical certification of the need of the adult child for assistance. An employee’s assertion that their adult child needs to stay in bed, without more, is not sufficient evidence that the child is  incapable of self-care.

FMLA Leave Generally Not Available to Help an Adult Daughter after Childbirth

Employees who are becoming grandparents are not eligible for leave for the birth of a grandchild or for the placement of a child with the employee’s child for adoption or foster care. When an employee takes FMLA leave after the birth, adoption or foster care placement of a child, the purpose of the leave is to give the new parent bonding time with the child. There is no parallel provision for a grandparent to take time to bond with a new grandchild.

Nevertheless, employees sometimes desire to take time off to help their adult children with a new baby. Employees may, of course, take accrued vacation leave for this purpose, and sick leave if an employer’s policy allows for it, but FMLA leave is not generally available for this purpose. An employee is entitled to take FMLA leave for an adult daughter who suffers complications during pregnancy or who has a serious health condition after giving birth if the daughter has an ADA-disability and is incapable of caring for herself.

Parent

Just as, a “son or daughter” is not limited to an employee’s biological child, so too for FMLA purposes, an employee’s “parent” is not limited to their biological mother or father. The FMLA regulations explain:

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.

See here at subsection (c).

The same definitions of adoption, foster care and in loco parentis apply in determining whether an employee is entitled to FMLA leave to care for a parent with a serious health condition as do when analyzing an employee’s relationship with a child. And just as an employee may take FMLA leave to care for a stepchild with a serious health condition, so too they may take FMLA leave to care for a stepfather or stepmother with a serious health condition. Again, grandparents are not included among the family relationships for which FMLA leave applies, unless a grandparent stood in loco parentis to the employee when they were growing up. Again, for a more detailed discussion of in loco parentis, see here.

In-Laws

The FMLA regulations state clearly that FMLA leave is not available to care for a mother-in-law or father-in-law with a serious health condition. Many people grow very close to their in-laws who, as they age, may move in with them. The in-law relationship, however close, cannot be an in loco parentis relationship, which could only have been formed when an employee was a child. So North Carolina employers cannot grant FMLA leave requests to employees who seek leave to care for their in-laws.

Conclusion

Employers should consider carefully employee requests for FMLA leave to care for an immediate family  with a serious health condition. If there is any doubt about whether a family relationship is one that qualifies for FMLA leave, employers should go back to the FMLA regulations and revisit the definitions of “spouse,” “son or daughter,” and “parents.” When needed, employers should not hastate to ask for documentation of the relationship.