FMLA Eligibility of Employees, Family Members, Clarified in DOL Opinion Letters

The Employment Standards Administration of the Department of Labor (DOL) has clarified eligibility rules under the Family and Medical Leave Act (FMLA) for several types of employees and their families. The opinion letters, written by DOL's Michelle Bechtoldt of the Office of Enforcement Policy, FMLA Team, are summarized below.

In-laws not 'family' for FMLA ... Parents-in-law, even if legal wards of the employee, are not "family members" within the meaning of the FMLA, and the employee may not use FMLA leave to care for them.

An employee was appointed co-guardian and co-conservator of his or her parents-in-law by the courts. The employee inquired whether FMLA leave could be taken to care for the in-laws, who were his or her legal wards.

DOL responded in an opinion letter that while the FMLA definition of "son or daughter" in section 101(12) includes the term "legal ward," that term is used "only in the context of determining those individuals who, for purposes of FMLA, would be considered a son or daughter."

Turning to the legislative history of the Act, Bechtoldt noted that the "language in the reports supports the conclusion that an employee is entitled to FMLA leave to care for a legal ward only to the extent that the employee has a relationship with the ward that is similar to that of a parent to a child."

The letter added that while the Act should be construed broadly, "[w]e do not believe, however, that the definition of 'son or daughter' can be interpreted to encompass relatives such as parents-in-law." (Wage and Hour Opinion Letter FMLA-96, June 4, 1998)

'Spouse' must be opposite sex ... A "spouse" is a partner of the opposite sex, either legally married or—in the states where common-law marriage is recognized—a spouse by common law.

For purposes of the FMLA, the definition of "spouse" is taken from the Defense of Marriage Act (DOMA), which establishes a federal definition of "marriage" as "only a legal union between one man and one woman as husband and wife, and a 'spouse' as only a person of the opposite sex who is a husband or wife."

Because, as Bechtoldt noted, the FMLA is a federal law, "it is our interpretation that only the federal definition of marriage and spouse as established under DOMA may be recognized for FMLA leave purposes." Bechtoldt added, however, that while the federal law does not provide for FMLA leave for the serious health condition of a domestic partner, many state and local laws do. (Wage and Hour Opinion Letter FMLA-98, Nov. 18, 1998)

No limit for sibling FMLA leave ... Sibling co-workers are not subject to the spousal limitation of the FMLA. Therefore, if siblings work for the same employer, unlike spouses they are each entitled to 12 weeks of FMLA leave to care for parents or other family members.

The FMLA limits husbands and wives working for the same employer to a combined total of 12 weeks of leave to care for parents or children. But the Act provides no limits to the amount of leave siblings who work for the same employer may use to care for a seriously ill parent. Thus the employer seeking the opinion "would not be permitted under the Act to limit the amount of FMLA leave the two sisters may use to care for their seriously ill mother," Bechtoldt said. (Wage and Hour Opinion Letter FMLA-99, Jan. 12, 1999)

Excluded public employees must meet two criteria ... While public employees are generally eligible for FMLA leave, certain public employees are excluded from coverage. Those who are not considered to be "employees" under the FMLA are individuals who are not subject to the civil service laws of the state, political subdivision or agency which employs them, and who also:

1. hold elective public office in the jurisdiction,
   
2. work on the personal staff of such an office-holder,
   
3. have been appointed by the office-holder to a policy-making position,
   
4. are immediate advisors with respect to constitutional or legal powers to such an office-holder, or
   
5. work for the legislative branch or body of the political subdivision.

While the person inquired about met the first criterion in not being subject to the civil service laws, he or she met none of the additional five criteria, of which at least one must apply in order for the individual to be excluded from FMLA coverage. (Wage and Hour Opinion Letter FMLA-104, May 21, 1999).

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