The Department of Labor enforces the Family and Medical Leave Act. In late June, the Department published an interpretation that clarifies its view on when an employee with FMLA rights may take leave to care for a child. An eligible employee may use FMLA time to care for an ill child if the employee has day-to-day responsibilities for the child and/or financially supports the child. That is, the law’s protections covers family members other than biological, adoptive or foster parents, including step-parents, other extended family members, and unmarried or same sex partners.
The law itself defines son or daughter to include “a child of a parson standing in loco parentis.” The Department makes the point that financial support is not necessary to prove if the employee seeking leave in fact has day-to-day responsibilities (at least part of the time) for the child. “Neither the statute nor the regulations restrict the number of parents a child may have under the FMLA.” Therefore, a child whose parents have remarried may have four people who qualify as parent; if a grandparent or other relative lives in one of the houses the number may climb. An employer is entitled to ask whether the employee seeking leave qualifies; but a “simple statement asserting that the requisite family relationship exists” is enough. There will seldom be detailed documentation to show the relationship. Because FMLA is not paid leave, although the employer is entitled to require an employee to use any available vacation or personal time during the FMLA leave, abuse of the privilege is unlikely.