Advice and Resolution Corner - FMLA Family Relationships

Document created by 1050210 on Nov 16, 2014
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Published Date: 10/13/2014


Reneé Watkins

By Reneé Watkins


[Don’t miss the Advice and Resolution Corner Plus members-only webcast scheduled for this Wednesday, October 15, 2014 at 8:30 am. Register now at]




Who is a covered family member under the Family Medical Leave Act?




The Family and Medical Leave Act (FMLA) entitles an eligible employee to take up to 12 workweeks of job-protected, unpaid leave during a 12-month period to care for the employee’s spouse, son, daughter or parent with a serious health condition. The FMLA also includes certain military family leave provisions, which we will cover in a future article.


The regulations define these relations as such:


Spouse: Spouse means a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including common law marriage in states where it is recognized. In June, the Department of Labor proposed to revise the definition of spouse under the FMLA in light of the United States Supreme Court’s decision in United States v. Windsor, which found section 3 of the Defense of Marriage Act (DOMA) to be unconstitutional. The comment period for this proposed ruling closed in mid-August 2014.


“The proposed rule would change the FMLA regulatory definition of “spouse” so that an eligible employee in a legal same-sex marriage will be able to take FMLA leave for his or her spouse or family member regardless of the state in which the employee resides. Currently, the regulatory definition of “spouse” only applies to same-sex spouses who reside in a state that recognizes same-sex marriage. Under the proposed rule, eligibility for FMLA protections would be based on the law of the place where the marriage was entered into, allowing all legally married couples, whether opposite-sex or same-sex, to have consistent federal family leave rights regardless whether the state in which they currently reside recognizes such marriages.” DOL website


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 minor. “Parent” does not include parents “in law.” Under the FMLA, persons who are in loco parentis include those with day-to-day responsibilities to care for or financially support a child.


Son or daughter: For purposes of FMLA leave taken for birth or adoption, or to care for a family member with a serious health condition, son or daughter means a biological, adopted, or foster child, a stepchild, a legal ward, or a child to whom the employee stands in loco parentis, who is either under age 18, or age 18 or older and “incapable of self-care because of a mental or physical disability” at the time that FMLA leave is to commence. Incapable of self-care means that the child requires active assistance or supervision to care for himself or herself in daily living activities.


To dive deeper into this topic, attend the Advice and Resolution Corner Plus webcast scheduled for this Wednesday, October 15, 2014 from 8:30 am until 9:00 am. You can self-register for this webinar at