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FMLA: Eligibility: Who is a covered family member under the FMLA?

   2/25/2015
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Covered family members under the Family and Medical Leave Act (FMLA) are the employee’s spouse, son, daughter or parent as defined in the FMLA Regulations Definitions.

Under the FMLA, a “spouse” means a husband or wife. As of March 27, 2015, workers in legal, same-sex marriages, regardless of where they live, have the same rights as those in opposite-sex marriages to federal job-protected leave under the FMLA to care for a spouse with a serious health condition.  See more information here. On March 26, 2015, four states, Texas, Arkansas, Louisiana, and Nebraska sought preliminary injunction on this ruling, so for the time being, employers in those four states may follow the former FMLA rules, and only recognize marriages legally allowed in their respective states. See more information here. The US Supreme Court decisions due in summer 2015 on whether states may prohibit same-sex marriages could render this injunction moot.

The FMLA defines the term “parent” as “a biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the employee when he or she was a minor.”

“Son or daughter” means a biological, adopted or foster child, a stepchild, a legal ward, or a child of a person standing 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.” Information on FMLA leave to care for an adult child is found in the SHRM Q&A here.

Family members not covered by the federal FMLA include siblings, in-laws, grandparents and other extended family members unless those individuals stood “in loco parentis” to the employee when he or she was a minor. Nonfamily members can also be covered under the in loco parentis definition, which is defined as having had the responsibility of providing day-to-day care to the employee and of financially supporting the employee in his or her childhood.

Some states offer more generous coverage and broader definitions of family members under state family leave laws that often run concurrently with FMLA leave. Some states include siblings, grandparents, domestic partners and others in the definition of family member for the purposes of family medical leave. Employers are advised to review their states’ family leave laws for compliance in the SHRM’s State Family/Parental/Adoption Leave Laws chart.

The FMLA also allows employees to take leave to care for a covered service member or veteran with a serious injury or illness if the employee is the spouse, son, daughter, parent or next of kin of the service member or veteran. “Next of kin” means the nearest blood relative other than the covered service member’s spouse, parent, son or daughter in the following order of priority: Blood relatives who have been granted legal custody of the covered service member by court decree or statutory provisions, brothers and sisters, grandparents, aunts and uncles, and first cousins unless the covered service member has specifically designated in writing another blood relative as his or her nearest blood relative for purposes of military caregiver leave under the FMLA. FMLA regulation §825.122 provides additional information on this topic.

 

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This material is for informational purposes only and not for the purpose of providing legal advice. You should always contact your attorney to determine if this information, and your interpretation of it, is appropriate to your particular situation.

 

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