Must we give FMLA leave to caretaker uncle?
Q. One of our employees has apparently taken in his sister’s young child because his sister is undergoing cancer treatment. He wants to take FMLA leave to help the child adjust. Must we provide the leave? — E.J., Pennsylvania
A. Quite likely, yes. The uncle may be considered in loco parentis to his niece. If so, he may be entitled to FMLA leave to help care for his niece.
The definition of “son or daughter” under the FMLA includes not only a biological or adopted child, but also a “foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.” 29 U.S.C. § 2611(12) The FMLA regulations define the term “in loco parentis” to include a person with day-to-day responsibilities to care for and financially support a child. 29 C.F.R. § 825.122(b), (c)(3) (The Department of Labor does not require that an individual necessarily prove both.)
The fact that a child has a biological parent in the home, or has both a mother and a father, does not mean the child can’t also be treated as the child of an employee without a legal or biological relationship for FMLA purposes.
