Guide to FMLA leave for family members

When an employee's family member is involved in an unexpected medical emergency or suffers from a serious health condition, can the employee take time off work to care for this family member in need? And if so, do employers have to keep their job waiting for them when they get back?

If this particular employee is fortunate enough to have vacation or sick time, they can always see if their employer will allow them to use that time to care for a family member. But what if they don't have any accrued time off — or what if they've already used it all? Well, the Family and Medical Leave Act (FMLA) may provide that answer — assuming the employee is eligible for FMLA leave and works for a covered employer.

Which family members are covered?

The FMLA states that an eligible employee can take up to 12 weeks of leave during a 12-month period to care for certain family members suffering from serious health conditions. Covered family members generally include:

• Spouses: A husband or wife, including those in same-sex marriages
• Children: An adopted, biological, or foster child, as well as a stepchild or a child of a person standing in loco parentis
• Parents: An adoptive, biological, or foster parent, or any other person who stood in loco parentis

As you can see, this list of family members is pretty short — meaning the FMLA typically doesn't cover leave to help care for cousins, godparents, grandparents, siblings, aunts, uncles, other relatives, or friends.

What is the "needed to care for" standard — and why does it matter?

Assuming the family member is a spouse, child, or parent, an eligible employee may seek FMLA leave — although there may still be hurdles for the employee to jump. For example, the employer may request that the employee provide certification from their health care provider. This can be obtained at the same time the employee is requesting FMLA leave to care for a family member with a serious health condition. In most cases, the certification will need to state that the eligible employee is “needed to care for" the spouse/child/parent, as well as for how long the employee will be needed.

The “needed to care for" standard can be applied to both mental and physical care, and it may include situations such as:

• The employee has a qualifying family member who, because of a serious health condition, is unable to care for their basic needs.
• The employee's qualifying family member has a permanent or long-term condition such as Alzheimer's, severe stroke, or a terminal disease.
• The employee's qualifying family member requires inpatient care.
• The employee's qualifying family member suffers from a chronic condition.
• The employee's qualifying family member suffers from conditions requiring multiple treatments and recovery from treatments, such as cancer or severe arthritis.
• The employee needs to fill in for someone else who normally provides care to a qualifying family member with a serious health condition.

So, what doesn't qualify? The FMLA generally excludes the following conditions, unless inpatient care or complications develop that would meet the necessary criteria: common colds, cosmetic treatments, earaches, headaches other than migraines, minor ulcers, orthodontic problems, routine dental issues, and upset stomachs.

What is in loco parentis under the FMLA?

As mentioned above, the list of covered family members under the FMLA is pretty short. But, also mentioned is the fact that family is not solely defined by biology. For example, sometimes children are raised by someone who isn't their biological, or even adoptive, parent. Are these situations covered under the FMLA? Possibly, if the person raising the child stood in loco parentis, which essentially means the person had day-to-day responsibilities to care for, or financially support, the child.

Some possible FMLA situations involving in loco parentis may include:

• A grandmother seeks leave to care for a grandchild whom she has assumed ongoing responsibility for raising (and the grandchild has a serious health condition)
• An uncle may take leave to care for a child for whom he assumes responsibility after the death of the child's parents (and the child has a serious health condition)

Likewise, when the children in the circumstances described above become older and join the workforce, they may be able to take FMLA leave to care for the individuals who stood in loco parentis, should these individuals develop a serious medical condition.

So, the employee may be eligible under in loco parentis to take leave to care for the person or persons who raised them. If this happens, the employee may need to provide sufficient documentation to their employer regarding how the individual they wish to care for qualifies under in loco parentis.

Have questions about employees using the FMLA for family members? Get answers.

There are a lot of gray areas when it comes to the FMLA for family members. If you want to keep up with the laws and know all the shades of gray, try Practical Law today.