The Family Medical Leave Act allows an eligible individual to take up to 12 weeks of leave to take care of a relative with a “serious health condition”. A relative can mean a lot of different things to different people. Who is considered a relative under the law?
Sometimes people grow up outside of the traditional mother, father, child nuclear family. They might be raised by grandparents, an aunt, or even a non-relative. The FMLA recognizes not everybody was raised by a biological “parent” and allows for an individual to take leave to care for people based on their relationship rather than biology. 29 CFR § 825.122 defines parent as “a biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the employee.” The key language is “individual who stood in loco parentis to the employee”. In loco parentis means to act as a parent. This means an employee can take to care of anybody who acted like the employee’s parent when the employee was a child.
Factors to be considered when determining if an individual stood in loco parentis to an employee when the employee was a child include the degree to which the employee was dependent on the person as a child; the amount of financial support, if any, provided; and the extent to which duties commonly associated with parenthood were exercised.
Having a living, biological parent doesn’t preclude an employee from using their FMLA leave to care for another person if that person raised the employee as a child. For example, if you were raised by a Lesbian couple who conceived through IVF, you might be able to take leave to care for both of your mothers and your biological father even if he did not help raise you as a child.
If you were raised by your aunt, your grandmother, or even the next door neighbor, it does not matter. What matters is how involved they were in raising you day-to-day.
An important point to remember is FMLA leave can only be used to care for an individual who has a “serious health condition“. Something like a mild cold may not meet the definition. It also important to remember the FMLA eligibility criteria. You have to work at an employer with at least 50 employees within a 75 mile radius of where you work. You also have to have worked for the employer for 12 months and at least 1250 hours in those 12 months.
The FMLA recognizes the diversity of the American family. The law celebrates and protects non-biological parents who take on the important responsibility of raising a child.