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Employment Family and Medical Leave (Part 2)

Part 1 on the subject of Employment Family and Medical Leave focuses on the general scope of protection afforded eligible employees at a federal and state level. Part 2 expands on the definitions of son, daughter, parent, and spouse in regards to the federal Family and Medical Leave Act (FMLA). In addition, it addresses what constitutes a “serious health condition,” and explains the scope of leave upon the birth, adoption or placement of a son or daughter.

The federal Family and Medical Leave Act (FMLA)Untitled provides eligible employees of covered employers with unpaid leave under specific conditions, including the birth of a son or daughter or placement of a son or daughter with the employee for adoption or foster care; to care for a spouse, son, daughter, or parent who has a serious health condition; for a serious health condition that makes the employee unable to perform the essential functions of his or her job; and for any qualifying exigency arising in specified military[1] service situation. In addition to the administrative requirements set under the FMLA, employers and employees must clearly understand the scope of FMLA coverage as it applies to eligible individuals under the law.

Meaning of son or daughter; parents; and “loco parentis”

It is important to note that the FMLA does not require an employee to have a biological or legal relationship to their son or daughter in order for FMLA eligibility. A “loco parentis” relationship is sufficient. That is, the employee must have a day-to-day responsibility for caring for the son or daughter to be entitled to leave under the FMLA, whether or not there is a biological or legal relationship. In addition, the son or daughter must be under the age of 18 years old, or 18 or older and lack the capacity of self-care because of a mental or physical disability.

Similarly, the FMLA applies to an eligible employee who must take care of a parent, whether a biological parent or a parent who acted in “loco parentis” to the employee, as adoptive or foster parent and assumed day-to-day parental responsibility to the employee. Generally, a parent-in-law is not included in the scope of coverage.

In addition, under certain conditions, an employee may be able to take FMLA leave to care for an individual who is not a son, daughter, spouse, or parent. For example, an eligible employee standing in “loco parentis” to a sibling may take leave to care for the sibling, if the sibling has an FMLA-qualifying serious health condition, is under 18 years old, or is 18 years of age or older and incapable of taking care of himself or herself because of a mental or physical disability.

Birth/placement of a child and bonding

The entitlement to FMLA leave for birth and bonding expires 12 months after the date of the birth of a child. Both parents have the same right to take FMLA leave for this purpose. This type of leave must be taken without interruption, unless the employer agrees to allow intermittent leave. For example, a parent may be allowed to work part-time during this time and take part-time leave.

Similarly, an employee’s entitlement to FMLA leave for the placement of a child for adoption or foster care expires 12 months after the placement. The employee may also request FMLA leave before the placement in order to tend to administrative processing and legal counsel visits, for example.

Serious health condition

Under the FMLA, a “serious health condition” means an illness, injury, impairment, or physical or mental condition that involves one or more of the following situations:

  • Any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility;
  • A period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider;
  • Any period of incapacity due to pregnancy, or for prenatal care;
  • Any period of incapacity (or treatment therefore) due to a chronic serious health condition (e.g., asthma, diabetes, epilepsy, etc.);
  • A period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective (e.g., Alzheimer’s, stroke, terminal diseases, etc.); or
  • Any absences to receive multiple treatments (including any period of recovery therefrom) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (e.g., chemotherapy, physical therapy, dialysis, etc.)

An employer requiring an employee to certify a medical condition by a health care provider must allow the employee at least 15 calendar days to obtain the medical certification.

Definition of spouse

The Department of Labor (DOL) has issued clear guidance that its FMLA protections apply to Lesbian, Gay, Bisexual, and Transgender (LGBT) eligible employees. [2] The DOL’s Final Rule issued on February 25, 2015 and effective on March 27, 2015, amended the regulatory definition of spouse under the FMLA so that eligible employees in legal same-sex marriages are also able to take FMLA leave. The FMLA’s definition of spouse expressly includes individuals who are in lawfully recognized same-sex and common law marriages and marriages that were entered into legally outside of the United States, if they could have been legally entered into in at least one state in the United States.

Best Practices

Employers covered by FMLA and Florida law and eligible employees can benefit from consulting with a knowledgeable employment attorney to learn their rights and responsibilities under FMLA and state law. Covered employers must avoid becoming vulnerable to administrative, individual, or collective action by not having a proper family leave policy and must know how to properly manage the compliance and defense for alleged FMLA violations. Workers should understand their eligibility and legal rights and learn how to request leave when afforded by law and how to take action in light of any employer violation. Employees have up to two years to bring a suit in court for an employer’s FMLA violation, and although this time may be extended if there is a willful violation, time is of the essence in properly addressing a claim.

Whether you are an employer or employee, the Orlando employment law attorneys of Burruezo & Burruezo can assist you with a family and medical leave compliance situation and offer legal representation, if necessary. Click here to contact an attorney now.

[1] See the Employment Rights of Military Veterans for more information on this subject.
[2] See also Discrimination on the Basis of Gender Identity (Transgender) and Sexual Orientation blog article for information about relevant workplace rights for Lesbian, Gay, Bisexual, and Transgender (LGBT) employees.

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