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New FMLA Leave for Aunts, Uncles, Grandparents, Stepparents, Gay Parents

Posted by Tamara

The U.S. Department of Labor recently ruled that aunts, uncles, grandparents, stepparents and others who are caring for a child are eligible for FMLA. 

FMLA has always included a provision that a parent can take up to 12 weeks of unpaid, job-protected FMLA leave to care for a newborn baby, or to bond with a child who is new to the home, as a foster child or an adoptee. FMLA also permits a parent to take up to 12 weeks of leave to care for a child with a serious health condition.  

Under the old FMLA regulations, someone who was acting in the place of a parent – called in loco parentis in legal terms – could take FMLA. This was permitted even when there was no legal or family relationship between the adult guardian and the child under the age of 18.  

However, the new FMLA regulation released in mid-2010 permits multiple adults to take leave to care for a child. For example, an aunt, uncle or grandparent could take leave. If a child’s parents are divorced and remarried, both parents and both stepparents could take leave.  

The stated reason for this regulation is to expand the rights of same-sex parents. When a gay or lesbian couple is caring for a child, this will entitle both of them to take time off from work, even if there is no legal or biological connection with the child.  

A famous couple can be used to illustrate this point. Brad Pitt and Angelina Jolie are not married as of this writing. Maddox Jolie-Pitt is the adopted son of Angelina Jolie, and despite his name has no biological or legal relationship to Brad Pitt. If Maddox were to develop a serious health condition, under the new regulations, Brad Pitt would be entitled to up to 12 weeks of unpaid leave to care for him because Pitt is in loco parentis. If Angelina Jolie was away on a movie shoot, Pitt’s mother or brother or both would also be entitled to take leave from a job to care for Maddox. 

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