by Carla O’Sullivan
But We Love Each Other, Doesnâ€™t That Qualify Under The FMLA?
February is the month of love when Cupid is in the air, roses are bought by the dozen, engagement rings are presented, children give Valentineâ€™sDay cards, and spouses frantically buy last minute gifts so there isnâ€™t a replay of that â€˜last birthday incidentâ€™. For some, itâ€™s the only time of year when the relationship gets any focus. If you are responsible for managing the FMLA for your company, I am betting you would gladly pay the cost of a diamond ring to only have to deal with relationship complexities one month a year! Am I right?
It is technically called the â€˜FAMILY and Medical Leave Actâ€™, so itâ€™s pretty logical that one of the reasons for leave is â€˜To care for the employeeâ€™s spouse, son, daughter, or parent with a serious health condition.â€™ I am betting Congress didnâ€™t realize the size of the grenades in this mine field.
- Federal FMLA currently provides protection to care for a â€˜Parentâ€™, â€˜Spouseâ€™, or â€˜Childâ€™ for the standard 12 work weeks in a 12 month period. Well, that seems simple.
- A parent can be biological, adoptive, step, foster, or the ever vague â€˜in loco parentisâ€™.
- A child is as simple as parent, so far biological, adoptive, step, foster; however, as with in loco parentis, there does not have to be a legally binding connection.
- A spouse is far and above the most complicated relationship to assess. However, now that the Department of Labor has finally given a ruling regarding legal same-sex marriages, this will be a bit easierâ€¦but not by much. The definition of a spouse is a â€˜husband or wife as defined or recognized under State lawâ€¦in the State where the employee residesâ€¦nope â€“ now it is in the state in which marriage was entered into.â€™
The Ya, butâ€¦:
- The term â€˜In loco parentisâ€™ is complex. Keep in mind that it can go in both directions that the in loco parentis relationship could be the employee in the parenting role or that they were in the minor child role and are now requesting time to care for the individual who parented them. This is not a simple relationship to get bona fide proof of, as a simple affidavit from the employee expressing that their aunt did raise them for 2 years when they were a child may be enough. Therefore, just because the employee took time to care for their biological mother, if they subsequently request time to care for their aunt because she acted â€˜in loco parentisâ€™ when they were in junior high, it is entirely possible both of these women acted in a parenting role. They simply had to have day-to-day responsibilities and provide financial support at some point in the individualsâ€™ life.
- When taking into consideration providing coverage for an employee requesting leave for their â€˜spouseâ€™â€¦
- State of Residence: Effective March 27, 2015, this is no longer a factor in assessing if the employee qualifies.
- State of Employment: This is still very relevant, as it still determines which state benefits the employee should receive, as well as may be a determining factor in the eligibility of the employee.
- State of Celebration: Effective March 27, 2015, this provides guidance as to whether the â€˜spousalâ€™ relationship qualifies, including same-sex, opposite sex, and common law relationships. Frankly, it is now the ambiguity of â€˜common lawâ€™ on a state-by-state basis that will be the most difficult to be 100% certain of, since many of the state statutes are not entirely clear. When in doubt, do not create a limiting policy where you cannot find documentation to support it. Put your policy in writing. Ensure all locations, in whichever states, manage their employee population consistently.
- A few examples might be helpful just to get your wheels turning:
- An example of a qualified relationship â€“ â€œI have custody of my child through a private church organization, but there was no formal adoption agency involved.â€ As well as, â€œI have taken my niece in, as her mother, my sister, has taken off and we do not know if she is returning. I have not formally gone through the foster or adoption processes.â€ In both cases, the parenting role has full responsibility of the child
- An example that does NOT qualify â€“ â€œI broke my leg when I was 27 and lived with my aunt who cared for me. Since I was â€˜disabledâ€™, she acted in loco parentis to meâ€ â€“ the aunt may have cared for him/her, but she did not have â€˜day-to-day responsibility and financial support requirements.
- Another example that does NOT qualify â€“ â€œMy brother is mentally disabled and I have power of attorney over his medical and financial decisions, so I am acting in place of my parents since they have passed away.â€ The sibling did not and does not currently have day-to-day responsibilities or financial support requirements over the other.
- One more example that does NOT qualify â€“ â€œMy girlfriend is pregnant and I would like to attend doctor visits.â€ There is not a spousal relationship
Yes, seriously, the complexities of how to analyze a relationship can become complicated and seemingly excessive under the federal FMLA. Once the states become involved, it is as nauseating as that new couple that says â€œI love you moreâ€â€¦.â€Oh, ya, well I love you infinity, plus one!â€ Ask all the questions you need to in order to assess the circumstances. Understand what the possibilities are. In the long run, it is not worth winning the battle, if you lose the war.
- 825.112: Qualifying Reasons for Leave â€“ Sections 3, 5, and 6 speak specifically to family member care
- 825.122: Definitions of the different family members