It’s official. The “Brangelina” clan, headed by Brad Pitt and Angelina Jolie, has grown by two. And what’s the first thing that comes to mind? The Family Medical Leave Act (FMLA), of course! Ok, maybe not.
The (Somewhat Complicated) Family Tree
The proud parents have announced that Vivienne Marcheline and Knox Leon were born on Sunday in a hospital in the South of France. The unmarried Pitt and Jolie have four other children. Jolie adopted Maddox in 2002 and Zaharah in 2005. Pitt adopted the two in January 2006, which was followed by the birth of the couple’s first child together, Shiloh who was born in Nambia in 2006. The couple adopted Pax in 2007.
It’s safe to say that this family is a long way from what was once considered a traditional family unit. What if Brad or Jolie were not motion-picture superstars but, instead, were your employees? How would the FMLA be applied to situations occurring in their family?
The Family and Medical Leave Act (FMLA) is one of the most complicated employment laws for HR professionals to administer. It’s hard enough to determine whether the Act applies to an employee who requests leave because of his own serious health condition. It can be even more challenging when leave is requested to care for a new or sick family member.
ABCs of the FMLA
The FMLA generally provides that certain employers (companies that employ 50 or more workers) must allow an employee who has worked at least 12 months and 1,250 hours to take up to 12 weeks of unpaid leave for one of the following: the birth of a child or to take care of the newborn; placement of a child for adoption or foster care; or to care for a spouse, child, or parent with a serious health condition.
Both male and female employees may take leave for the birth and care of a newborn child. This type of leave has nothing to do with the medical condition of the newborn or the mother. As a result, Brad and Angelina are simply entitled to take leave as a result of the birth of the twins.
There are only three real limitations to this type of leave. First, the leave must be taken within a year of the child’s birth. Second, it must be taken in a single block of full days off. In other words, Brad can’t take leave three weeks after the birth of the child and then wait several months to take the remaining nine weeks. Similarly, this type of leave can’t be taken intermittently or for partial days unless you agree to that arrangement. And finally, if Brad and Angelina both worked for you, they are entitled to a total of 12 weeks jointly.
The FMLA also requires you to grant leave when a child is placed with your employee for adoption or foster care. According to U.S. Department of Labor (DOL) regulations, FMLA leave may be used before the employee actually gets the child. She may take FMLA leave to attend meetings with an attorney, doctor’s visits, and court appearances or to fly out of the country to pick up the child. Thus, Brad and Angelina could have taken FMLA leave off to fly to Cambodia, Vietnam, or Ethiopia in connection with the adoption of Maddox, Pax and Zahara.
Are You My Mother?
The FMLA allows employees to take unpaid leave to care for certain family members who are suffering from a “serious health condition.” The law severely restricts the family members for whom leave can be taken, however. An employee can take leave “to care for” his spouse, son or daughter, or parent, but not for siblings, grandparents, or grandchildren. While it might seem that determining whether leave must be granted for a family member is straightforward, the definitions of “spouse,” “child,” and “parent” can make figuring out whether leave is required harder than it looks.
First, a “spouse” is either a husband or wife defined by the law of the state where the employee resides. That’s a particular challenge for Delaware employers that have employees living in Pennsylvania. That state recognizes “common-law marriage,” while Delaware doesn’t. As a result, Brad could not take FMLA leave to care for Angelina if they lived in Delaware, but might if they lived in Pennsylvania and their relationship constituted a “common-law marriage.”
The regulations define “child” as either a biological child, an adopted child, a foster child, a stepchild, a legal ward, or a child for whom the employee is standing in loco parentis (that’s Latin for “in place of the parents”). In other words, the employee must have day-to-day responsibility for taking care of and financially supporting the child. The child must also generally be under 18 or incapable of caring for herself because of a mental or physical disability. All the Brangelina kids meet this definition one way or another.
The FMLA regulations define “parent” to include the employee’s biological parent or the person who stood in loco parentis to him when he was younger. As a result, an employee can have more than two “parents” for FMLA purposes. As a result, the adopted kids might someday be eligible to take care of Brad and Angelina, but also their biological parents.
For more information on the basis of FMLA and what it requires, check in at HR Summer School for FMLA 101.