Leave to Care for a Friend Who's Like Family: Pandora's Box or Chance to Empathize?

​More employers are granting employees leave to look after ill friends with a "familial affinity," as a growing number of states are requiring them to do.

First, a vocabulary question: Is "familial affinity" the correct terminology, or does "friend" better describe the relationship? Only the former, says one legal expert, while others say the latter may be correct in certain circumstances, with one adding that "designated persons" is often the language statutes use.

Regardless of terminology, HR is concerned about the potential burden that businesses might bear under the growing number of such state laws, while employees are worried about close, unrelated loved ones in need of care. Even without any legal requirement to grant leave for those with a familial affinity, HR might face requests for time off to care for a friend. With more people relying on chosen rather than nuclear families, the number of such requests is likely to rise.

Nearly 40 percent of adults are unpartnered, up from 29 percent in 1990, according to the Pew Research Center. "The marriage rate has been decreasing for decades, and more of those who do marry wait until later in life to do so," said Ann Marie Zaletel, an attorney with Seyfarth in Los Angeles.

"Inclusion of a familial affinity relationship provides a greater ability for LGBTQIA+ employees to access leave to care for their loved ones," said Abigail O'Connell, an attorney with Sun Life Financial in Wellesley Hills, Mass.

However, the definition of familial affinity may have a broader application. For example, Minnesota's familial affinity requirement, effective Jan. 1, 2024, may apply to members of a household, such as roommates, and in some instances others, said Marcy Frost, an attorney with The Law Office of Marcy R. Frost PLLC in St. Louis Park, Minn.

Chosen Families

More and more people are closer with their chosen families—to whom they often don't have a legal or biological relationship—than their own blood relations, said Renata Kilibarda, SHRM-CP, manager of human resources with Vegas.com, an online travel agency headquartered in Las Vegas.

"Who we support and who supports us might no longer be determined by strict blood and legal relationships," agreed Stephanie Argentine, chief people officer and head of legal affairs for Centivo, a Buffalo, N.Y.-based health plan for self-funded employers.

Employees "want and need to be able to take care of their close friend if they need to," Kilibarda said. "I have a lifelong best friend and we consider each other sisters." She added that she has two other friends who she considers family.

"I took three days off myself to take care of a close friend who had a major surgery, and I took her to the surgery, sat in the waiting room for 10 hours, brought her home and stayed for a few days," Kilibarda said. Kilibarda made her friend smoothies, as her friend was unable to eat, and Kilibarda woke up at night to make sure her friend was OK.

Many people do not have large families or may not have anyone in their family to care for them during a short-term disability or a prolonged illness, said David Epstein, SHRM-SCP, director of human resources and talent strategy at Mobilization for Justice Inc. in New York City. "Friends may be best placed to help care for them," he said.

Time Off Often Granted Without Any Mandate

Absent any mandate to care for those with a familial affinity, a request for time off to care for a friend likely would fall under vacation or personal leave, said Joyce Chastain, SHRM-SCP, an HR consultant with The Krizner Group in Tallahassee, Fla. "That is how I would expect HR to respond, unless the organization has a very generous leave-of-absence policy."

She said there could be big consistency issues if such leave is granted to one employee for the closeness of the relationship but denied for another later because the relationship is not deemed to be as close or significant.

While employers are frequently asked to grant extended leave for reasons not covered under the Family and Medical Leave Act (FMLA), denial of such leave must be uniformly applied, Chastain said. Failure to do so leaves the organization vulnerable to legal claims of disparate treatment if the leave isn't required. However, Chastain said that "employers should not be losing quality and trained talent because the employee has a significant and conflicting personal need. Exceptions may always be made to policies by an executive-level leader."

In addition, the end of FMLA leave may be the start of leave under the Americans with Disabilities Act.

Memorialize the decision to make an exception, including why it was important to the employer—not the employee—to grant it, Chastain said. "Quality employees who are absent from the workplace are always missed," she said. It's preferable to have them absent for a defined period rather than to risk their resignation, she added.

"Many, including smaller employers, also provide unpaid leaves of absence for employees who are not eligible for FMLA or comparable state leave," said Christine Walters, SHRM-SCP, an HR consultant with FiveL Company in Westminster, Md. "While these are usually unpaid, some employers will provide job protection for a limited period of time, such as up to 30 days."

Walters said other organizations give employees the ability to work remotely or with greater flexibility for an interim period so the employees could continue working, but on schedules that enabled them to integrate the time needed to provide support to a beloved friend while performing their job duties.

Burden on Business Operations

From an HR perspective, it could be problematic for an employee to prove the depth of the relationship with their friend and family-like bonds, Kilibarda said. If someone is abusing the employer's goodwill and taking time off for multiple people in a year, she said she'd scrutinize the request.

Now is not a good time at her business for a policy of time off specifically for friends, Kilibarda noted. But if time off for an employee to care for a friend isn't a hardship for a company, "I'd say go for it," she said.

One significant challenge with leaves for designated persons is the burden on business operations given the potential number of employees who could be on leave at any given time, Zaletel said.

Some laws, such as Minnesota's, provide that an employee can designate one individual annually. The statute's language is clear that the designation could change from year to year, Frost said.

New statutes on leave for a designated person may need to be refined by state legislatures or clarified through state regulations. "This presents a great opportunity for advocacy," Walters said. "HR professionals might consider the benefits and challenges that such a state or local law would have on their business," and share the business impact of the bills with their elected officials, she added.

State Requirements

In Minnesota, employers are preparing for the imminent requirement of paid family and medical leave for someone whose close association with the employee is the equivalent of a family relationship.

"Anyone who is part of the household would fit this requirement," Frost said. If the person isn't part of the household, the employer should consider how long there has been a relationship, whether care has been provided in the past with or without absences from work, and how much time is requested, she added. "The fewer the hours, the less I would be concerned about the relationship," Frost said.

"The requests need to be taken seriously," Frost added. "Very few HR folks ever had to consider leave for a friend before."

O'Connell said the correct terminology is paid leave to care for someone with a familial affinity rather than for a friend. "I don't think leave to care for a friend is required in any state," she said.

Several states have expanded the definition of family member under paid family and medical leave mandates to include familial affinity, she said. "The details vary, but this typically includes a household member, someone related to the employee by blood, or someone with a significant personal bond to the employee that is or is like a family relationship regardless of biological or legal relationship," O'Connell explained.

She said leave to care for someone with a familial affinity is available under:

• California's unpaid Family Rights Act.
• Connecticut's paid family and medical leave.
• Colorado's paid family and medical leave.
• Maine's paid family and medical leave.
• Minnesota's paid family and medical leave program.
• New Jersey's unpaid Family Leave Act and paid family leave.
• Oregon's paid family and medical leave.
• Washington's paid family and medical leave.

Arizona also mandates leave to care for "any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship," Frost said.

Safeguards to Curb Abuse

Leave abuse is a concern with laws mandating time off for designated persons, Zaletel said.

HR professionals who handle leave should require the employee to produce a complete and sufficient leave certification from the health care provider of the person with whom they have a familial affinity, O'Connell said.

"I do not recommend that HR attempt to validate a familial affinity relationship outside of asking for a brief attestation from the employee about the existence of the relationship when requesting leave so that the employer can provide the employee the certification form to be completed," O'Connell said.

These affinity relationships won't result in a spike in leave claims and employees won't be able to take leave to care for anyone, she added. "I think this misconception is because people forget the certification process continues to apply."

If employers do grant leave for employees to care for a friend with a familial affinity, they should issue clear written policies that establish eligibility requirements, amount of leave available in a 12-month period and the number of designated persons for whom an employee may take leave in a 12-month period, Zaletel said.

Whether leave to care for a friend is required or not, HR should be kind and empathetic with employee requests, Epstein said. "This includes caring for a friend."