Q. One of our employees has apparently taken in his sister’s young child because his sister is undergoing cancer treatment. He wants to taketo 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 toleave 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) Thedefine 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.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Notify employees every time you plan to charge time off to FMLA
- 2009 is 'year of employee benefits'; more in the pipeline for 2010
- Does FMLA apply to same-sex spouses who don't live in states that recognize same-sex marriage?
- Offer half-Day FMLA leave regardless of the burden