Decoding the FMLA’s ‘Family Tree’

When it comes to FMLA administration, who qualifies as a “child,” a “father,” or a “parent” now depends on the type of FMLA leave being requested. To help you decode the FMLA’s family tree, we provide the following list of definitions for key family relationships under the FMLA.

Bonding/Birth of Child

• Birth/bonding. Both the biological or adoptive/foster mother and the father are entitled to FMLA leave for the birth, adoption, or placement of a child/bonding (no marriage is required).
• Spouses at same employer. Only a husband and wife employed by the same employer must combine leave (marriage is required).
• Care for pregnant spouse. Only a husband is entitled to FMLA leave to care for his pregnant spouse who is incapacitated during pregnancy, for prenatal care, or to care for the spouse/wife after the birth of a child (this represents a change from the previous regulatory interpretation which applied to “fathers,” not “husbands”).
• Newborn with serious health condition. Both the mother and father may take FMLA leave to care for a newborn child with a serious health condition (no marriage required).

Leave for a Family Member With a Serious Health Condition

• Spouse means a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including common law marriage in states where it is recognized.
• Son or daughter means a biological, adopted, step, or foster child; a legal ward; or a child of a person standing in loco parentis who is either under age 18, or age 18 or older and “incapable of self-care because of a mental or physical disability” at the time that FMLA leave is to commence.
• Parent means a biological, adoptive, step, or foster father or mother, or any other individual who stood in loco parentis to the employee when the employee was a child. This term does not include parents-in-law. The definition of parent does not include parents-in-law, although some state FMLA laws do expand the definition of parent to include parents-in-law.

Family Military Leave

• Spouse means a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including common law marriage in states where it is recognized.
• Son or daughter on active duty or call to active duty status means the employee’s biological, adopted, step, or foster child; legal ward; or a child for whom the employee stood in loco parentis. The child must be on active duty or call to active duty status, but may be any age.
• Parent means a biological, adoptive, step, or foster father or mother, or any other individual who stood in loco parentis to the employee.  This term does not include parents-in-law.
• Parent of a covered servicemember means a covered servicemember’s biological, adoptive, step, or foster father or mother, or any other individual who stood in loco parentis to the covered servicemember. This term does not include parents-in-law.
• Next of kin is defined as the nearest blood relative other than the covered servicemember’s spouse, parent, son, or daughter, in the following order of priority*: blood relatives who have been granted legal custody of the covered servicemember by court decree or statutory provisions; brothers and sisters;grandparents; aunts and uncles; and first cousins.

* The order of priority for next of kin does not apply if the covered servicemember has specifically designated in writing another blood relative as his or her nearest blood relative for purposes of military caregiver leave under the FMLA.  When no such designation is made, and there are multiple family members with the same level of relationship to the covered servicemember, all such family members are considered the covered servicemember’s next of kin and may take FMLA leave to provide care to the covered servicemember, either consecutively or simultaneously. When such designation has been made, the designated individual must be deemed to be the covered servicemember’s only next of kin.