Why? Care for a Covered Servicemember with a Serious Injury or Illness….Part 3

Here is Jerrod’s third post.  He is doing a great job don’t you think?

29 CFR § 825.112(a)(6) also makes it clear that the employee must have a certain type of relationship with the covered servicemember to qualify for FMLA leave. These relationships must be that of a spouse, son, daughter, parent, or next of kin. Simple right? But what is the law without definitions of what people consider to be common sense and every day words?

Let’s look at the simple definitions first.

Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under state law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either:

(1) Was entered into in a State that recognizes such marriages; or

(2) If entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.

29 CFR § 825.102

That is what the reg still says, but remember the Supreme Court in Obergfell ruled that marriage is a fundamental right, so same sex marriage is now legal in every state.

Alright, so if the servicemember is married to the employee legally, they are a spouse. No surprise there. What about son, daughter, or parent?

(1) Son or daughter of a covered servicemember means the covered servicemember’s biological, adopted, or foster child, stepchild, legal ward, or a child for whom the covered servicemember stood in loco parentis, and who is of any age.

(2) Parent of a covered servicemember means a covered servicemember’s biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the covered servicemember. This term does not include parents “in law.”

29 CFR § 825.127(d)

Again, pretty straight forward. A son, daughter, or parent is typically what one would think of as a son, daughter, or parent. But what is a legal ward? And what about this phrase “in loco parentis?” A dash of Latin always makes things clearer instead of more confusing, right?

Legal ward is not defined, but the Department of Labor has stated:

“[A]n employee is entitled to FMLA leave to care for a legal ward only to the extent that the employee had a relationship with the ward that is similar to that of a parent or child. If, for example, a child becomes the legal ward of his or her aunt, uncle, or parents’ best friends because of the death of his or her biological parents, we believe that such legal wards fall within FMLA’s definition of son or daughter. We do not believe, however, that the definition of “son or daughter” can be interpreted to encompass relatives such as parents-in-law.”

WH Admin. Op. FMLA-96 (June 4, 1998), Wage & Hour Manual 99:33106.

In loco parentis, or “in place of a parent,” has a similar meaning.

(1) Persons who are “in loco parentis” include those with day-to-day responsibilities to care for and financially support a child, or, in the case of an employee, who had such responsibility for the employee when the employee was a child. A biological or legal relationship is not necessary.

29 CFR § 825.122(d)

So it seems that if an employee had a relationship with someone that was much like that of a typical parent or child relationship, but is not biologically or legally related to the person, then they still may be qualified for leave due to legal ward or in loco parentis relationships.

We have one more qualified relationship to go, and that is next of kin.

Next of kin of a covered servicemember means the nearest blood relative, other than the covered servicemember’s spouse, parent, son, or daughter, in the following order of priority: blood relatives who have been granted legal custody of the servicemember by court decree or statutory provisions, brothers and sisters, grandparents, aunts and uncles, and first cousins, unless the covered servicemember has specifically designated in writing another blood relative as his or her nearest blood relative for purposes of military caregiver leave under the FMLA. When no such designation is made, and there are multiple family members with the same level of relationship to the covered servicemember, all such family members shall be considered the covered servicemember’s next of kin and may take FMLA leave to provide care to the covered servicemember, either consecutively or simultaneously. When such designation has been made, the designated individual shall be deemed to be the covered servicemember’s only next of kin. For example, if a covered servicemember has three siblings and has not designated a blood relative to provide care, all three siblings would be considered the covered servicemember’s next of kin. Alternatively, where a covered servicemember has a sibling(s) and designates a cousin as his or her next of kin for FMLA purposes, then only the designated cousin is eligible as the covered servicemember’s next of kin. An employer is permitted to require an employee to provide confirmation of covered family relationship to the covered servicemember pursuant to § 825.122(k).

29 CFR § 825.127(d)

Again, this is wordy, but not as complicated as it seems. Next of kin means the nearest blood relative according to the hierarchy indicated, with siblings being the highest and cousins the lowest. An employee falling in one of these rolls may be the only next of kin or may be one of multiple if they are in the same level of hierarchy, and all may be qualified for leave. An exception is if someone is specifically designated as the servicemember’s next of kin, then only the designated person qualifies for leave.