Who are your spouse, children and parents? While this seems like a simple
enough question, the Family and Medical Leave Act (FMLA) makes a few twists of
its own.
Obviously, a couple with a marriage license and all the ceremonial trimmings
are married, and the other person's name on the marriage license is the
employee's spouse for FMLA purposes. However, the FMLA definition is broader.
Under the FMLA, a spouse means a husband or wife as defined or recognized under
state law for purposes of marriage in the state in which the employee resides.
Texas recognizes common law marriages, and so a common law spouse is considered
a spouse for purposes of leave eligibility under the FMLA.
The FMLA definition of a parent is also broad. In addition to the biological
parents, it includes anyone who stands or stood in loco parentis (in the
place of a parent) to an employee when the employee was a son or daughter. (The
term parent, however, does not include in-laws.)
In determining who is a son or daughter under the FMLA, a biological,
adopted, or stepchild meets the definition. However, the definition goes on to
include a legal ward or the child of a person standing in loco parentis.
The definition, for FMLA leave purposes, is narrowed to persons under 18 years
of age, or age 18 or older and who are incapable of self-care because of a
mental or physical disability.
An employee who stands in loco parentis includes anyone with the
day-to-day respon-sibilities to care for and support a child. An employee also
has the right to leave under the FMLA because of the serious illness of someone
who had such responsibility for the employee when the employee was a child. For
a person to stand in loco parentis, it is not necessary for a biological
or legal relationship to exist.
Under the FMLA regulations (29 CFR Part 825), an employer may require an
employee giving notice of the need for leave to provide reasonable documentation
or statement of family relationship to provide confirmation of family
relationship. This documentation may be simply a statement from the employee, a
child's birth certificate, or a similar legal document. The employer is entitled
to examine birth certificates and other similar documentation but the employee
is entitled to the return of the documentation submitted for this
purpose.