Who is an immediate family member under FMLA?

On Behalf of Dunlap Fiore, LLC |

As the United States begins to place greater focus on granting employees more rights to take time off for a variety of reasons, it is important for employers in Louisiana to have a grasp of how certain laws will affect their operations. The Family and Medical Leave Act (FMLA) grants covered employees the right to take a limited amount of unpaid time off without fear of losing their jobs. However, employers also have rights under FMLA. That can easily be forgotten, if there are allegations of wrongdoing from employees. Employers must bear in mind that they too are shielded by employment law. One such case is calling into question when an employee’s circumstances qualify to receive leave under FMLA.

FMLA grants employees the right to time off — up to 12 work weeks in a 12-month period — for certain reasons. When the time off is being requested to care for an “immediate family member” who has a serious health condition, it only applies to a spouse, a parent and a son or daughter. These individuals might be easy to define, but it is important for employers to know that there are certain criteria to determine whether the loved one fits into this category and the employee can use FMLA.

A spouse is a husband or wife in which the relationship is recognized as a union. This includes common law marriages and same-sex marriages. If the marriage was validly entered outside the U.S., it too is recognized, provided it could have been completed in at least one state in the union. A parent is, obviously biological. It can also be an adoptive parent, a foster parent or another individual who was in loco parentis when the employee was a child. Parents-in-law are not included.

A son or daughter can be biological, adopted, a foster child, stepchild, legal ward or a child “in loco parentis,” provided the child is under 18 or is 18 and cannot care for him or herself when FMLA will begin. For the parent to use FMLA, the child must: have a disability defined under the Americans with Disabilities Act (ADA); not be able to care for him or herself; be suffering from a serious health issue; and need to be cared for due to that issue.

Employers are not depriving their employees of their rights under FMLA, if they only allow the time off to be taken because the employee meets the qualifications for taking it. When there is a dispute about FMLA, it is imperative that the employer take steps to protect from lawsuits by contacting a law firm that is well-acquainted with employment law.