Must we grant FMLA leave for employee to provide care to her niece?

Q. An employee has requested FMLA leave to care for her 5-year-old niece who is recovering from heart surgery. The employee’s sister and her daughter live with the employee. Is leave under these circumstances protected under the FMLA?

A.  The FMLA allows eligible employees to take up to 12 workweeks of job-protected leave for reasons including “to care for a son or daughter with a serious health condition.” The FMLA defines a “son or daughter” as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is—(A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability.”

According to an Administrator’s Interpretation recently published by the U.S. Department of Labor’s Wage and Hour Division, the FMLA does not require an employee who assumes the responsibilities of a parent to show that he or she provides both day-to-day care and financial support in order to be found to stand in loco parentis to a child.

In addition, the interpretation made clear that the statute and regulations do not restrict the number of parents a child may have under the FMLA.

In this case, because the employee’s niece lives with the employee, it is quite possible she could be considered to be standing in loco parentis with respect to the girl. You may want to determine more facts to assess whether this qualifies for FMLA, but I would not dismiss the request out of hand.