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Biological Link to Child Isn’t Required for Employee to Take FMLA Child-Care Leave

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in Employment Law,FMLA Guidelines,Human Resources

The FMLA clearly doesn’t cover employees who take time off work to care for a sick girlfriend or boyfriend. However, as a new case shows, employees can legally take FMLA leave to care for a girlfriend’s or boyfriend’s child, if the employee has assumed day-to-day responsibility for that child.

That’s because the FMLA—which grants employees up to 12 weeks of unpaid job-protected leave to care for a seriously ill spouse, parent, son or daughter—broadly interprets the definition of “son or daughter.” No biological or legal relationship is required.

In fact, the FMLA defines 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 under 18 years of age (or is 18 years of age or older and incapable of self-care because of mental or physical disability.)”

Recent case: Gene Brehmer, a lineman for Xcel Energy, had persistent attendance problems. After he’d used up his sick leave, he skipped work one day to care for his girlfriend’s son while she had surgery. Xcel fired him for missing the time.

He sued, alleging he should have received FMLA leave.

He conceded that he wasn’t entitled to FMLA leave to care for his girlfriend (she wasn’t a family member). But he claimed that he stood in loco parentis to the child because he was responsible for much of the day-to-day care for the child.

He provided significant financial support and regularly helped the child dress, eat and get ready for bed. He drove the boy to doctors’ appointments, attended softball games and went to school when the boy had trouble there. Thus, he claimed, the boy was his “son” for FMLA purposes.

The court agreed with Brehmer that the FMLA covers care for children for whom the employee acts as a parent, whether or not there is a biological or legal relationship.

While he won that battle, Brehmer lost the war. The court said that, on that day in question, the child stayed with his aunt most of the day, so Brehmer technically wasn’t “caring” for the child and, thus, wasn’t eligible for FMLA that day. (Brehmer v. Xcel Energy, No. 06-3294, DC MN, 2008)

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