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

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The FMLA allows an employee to take leave to care for the employee's spouse, son, daughter or parent with a serious health condition.

A spouse is defined as a husband or wife as defined by or recognized by state law, including common law marriages. However, employers in states allowing gay marriage or civil unions should be particularly cognizant of the interplay between federal and state law in this evolving area of law. On June 26, 2013, the U.S. Supreme Court, in United States v. Windsor, found unconstitutional Section 3 of the federal Defense of Marriage Act (DOMA), which had prohibited the federal government from acknowledging marriages between same-sex couples. Same-sex marriages were recognized as legal by 12 states and the District of Columbia at the time of the ruling.

Now that same-sex spouses are ‘spouses’ under federal law if they are ‘spouses’ under state law, all federal laws and regulations that include spouses include the broader same-sex definition in those states where same-sex marriage is legal. FMLA refers to state law for the definition of ‘spouse.’ Thus, for FMLA, an employee can take leave for a serious medical condition,” including military-family leave, of the same-sex spouse if the employee lives in a state that allows same-sex marriage. However, since the court did not consider Section 2 of DOMA, states still have the right not to recognize same-sex marriages originating in other states or territories. Therefore, in the 13 states that recognize gay marriage—California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington, plus the District of Columbia—applicability of the FMLA would depend on the state definition of marriage.

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.” See FMLA: Eligibility: Is an employee entitled to FMLA leave to care for an adult child?

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. Non-family members also can 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 as well as for 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. Some states include siblings, grandparents, domestic partners, etc., in the definition of family member for the purposes of family medical leave. Employers are advised to review their state’s family leave laws for compliance at SHRM’s 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 specifically has designated in writing another blood relative as his or her nearest blood relative for purposes of military caregiver leave under the FMLA. See FMLA regulation 825.122.

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