FMLA Rights for Nontraditional Families
The federal Family and Medical Leave Act (FMLA) gives eligible employees the right to take unpaid, job-protected leave each year in certain situations, including (though not limited to):
- For the birth, adoption, or foster care placement of a child;
- To care for a newborn or newly placed child; or
- To care for a family member with a serious health condition.
The Department of Labor (DOL) has issued guidance on how these FMLA rights extend to nontraditional families, including the following definitions and examples.
Leave for Children
The FMLA entitles an eligible employee to take up to 12 weeks of job-protected unpaid leave for the birth or placement of a son or daughter, to bond with a newborn or newly placed son or daughter, or to care for a son or daughter with a serious health condition.
Definition of Son or Daughter
The FMLA defines a “son or daughter” as a biological, adopted, or foster child; a stepchild; a legal ward; or a child of a person standing in loco parentis. According to the DOL, this broad definition is intended to reflect the reality that many children in the United States live with a parent other than their biological father and mother.
In loco parentis refers to a relationship in which a person puts himself or herself in the situation of a parent by assuming and discharging the obligations of a parent to a child. The in loco parentis relationship exists when an individual intends to take on the role of a parent to a child who is under 18, or 18 years of age or older and incapable of self-care because of a mental or physical disability.
Although no legal or biological relationship is necessary, grandparents or other relatives, such as siblings, may stand in loco parentis to a child under the FMLA as long as the relative satisfies the in loco parentis requirements.
Under the FMLA, persons who are in loco parentis include those with day-to-day responsibilities to care for or financially support a child. Courts have indicated some factors to be considered in determining in loco parentis status include:
- The age of the child;
- The degree to which the child is dependent on the person;
- The amount of financial support, if any, provided; and
- The extent to which duties commonly associated with parenthood are exercised.
The fact that a child has a biological parent in the home, or has both a mother and a father, does not prevent a person from standing in loco parentis to that child. The FMLA does not restrict the number of parents a child may have; the specific facts of each situation will determine whether an employee stands in loco parentis to a child.
Under the FMLA, an employee who actually has day-to-day responsibility for caring for a child may be entitled to leave even if the employee does not have a biological or legal relationship to the child.
Examples of situations in which FMLA leave may be based on an in loco parentis relationship include:
- A grandfather may take leave to care for a grandchild (whom he has assumed ongoing responsibility for raising) if the child has a serious health condition.
- An aunt who assumes responsibility for caring for a child after the death of the child’s parents may take leave to care for the child if the child has a serious health condition.
- A person who will co-parent a same-sex partner’s biological child may take leave for the birth of the child and for bonding.
Leave for Parents
The FMLA entitles an eligible employee to take up to 12 weeks of job-protected unpaid leave to care for a spouse, son, daughter, or parent with a serious health condition.
Definition of a Parent
For FMLA leave purposes, a “parent” is defined broadly as the biological, adoptive, step, or foster parent of an employee or an individual who stood in loco parentis to the employee when the employee was a son or daughter. Parent does not include the employee’s parents-in-law.
An eligible employee is entitled to take FMLA leave to care for a person who provided such care to the employee when the employee was a child. If the individual stood in loco parentis to the employee when the employee was a child, the employee may be entitled to take FMLA leave even if he or she also has a biological, step, foster, or other parent–provided that the in loco parentis relationship existed between the employee and the individual when the employee met the FMLA’s definition of a son or daughter. Although no legal or biological relationship is necessary, grandparents or other relatives, such as siblings, may stand in loco parentis to a child under the FMLA as long as the relative satisfies the in loco parentis requirements.
An eligible employee may take leave to care for any individual who stood in loco parentis to the employee when the employee was a child regardless of any biological relationship of the two people. For example:
- An employee may take leave to care for his aunt with a serious health condition, if the aunt stood in loco parentis to him when he was a son or daughter.
- An employee may take leave to care for her grandmother with a serious health condition if the grandmother stood in loco parentis to her when she was a son or daughter.
A son or daughter of a same-sex partnership may take leave to care for the non-adoptive or non-biological partner who stood in loco parentis. Unless an in loco parentis relationship existed when the employee was a son or daughter, an employee is not entitled to take FMLA leave to care for a grandparent, aunt, or uncle with a serious health condition.
Leave for Same-Sex Spouses
The FMLA entitles an eligible employee to take job-protected unpaid leave for a spouse in the following situations:
- To care for a spouse with a serious health condition;
- To address qualifying exigencies related to a spouse’s covered military service; or
- To care for a spouse who is a covered service member with a serious injury or illness (military caregiver leave).
Under the FMLA, a “spouse” means a husband or wife as defined or recognized in the state where the individual was married, including in a common law marriage or same-sex marriage. Spouse also includes a husband or wife in a marriage that was validly entered into outside of the United States, if the marriage could have been entered into in at least one state.
The FMLA’s definition of spouse does not include domestic partners, which means that an employee is not entitled to take FMLA leave to care for a domestic partner with a serious health condition. Eligible employees in same-sex marriages are also entitled to take FMLA leave to care for:
- Their stepchild (the child of the employee’s same-sex spouse) even if the in loco parentis requirement of providing day-to-day care or financial support for the child is not met; or
- A stepparent who is the same-sex spouse of the employee’s parent, regardless of whether the stepparent ever stood in loco parentis to the employee.
Documenting the Relationship
An employer may, but is not required to, request that an employee provide reasonable documentation of the qualifying family relationship. An employee may satisfy this requirement by providing either a simple statement asserting that the requisite family relationship exists, or other documentation, such as a child’s birth certificate or a court document. It is the employee’s choice whether to provide a simple statement or other documentation. Employers may not use a request for confirmation of a family relationship in a manner that interferes with an employee exercising or attempting to exercise his or her FMLA rights.
Can an Employer Match Employee Pre-Tax HSA Contributions Under a Cafeteria Plan?
Employers often ask if they can make matching contributions based on a percentage of a participant’s pre-tax HSA contributions made through the company cafeteria plan (similar to a 401k matching program). The answer is: probably.
Some employers’ HSA contributions are subject to comparability requirements that effectively prohibit matching contributions because the contributions would trigger a 35% excise tax on the employer. To be comparable, contributions must generally be the same dollar amount or percentage of the high-deductible health plan (HDHP) deductible, a standard that matching contributions cannot satisfy. But the comparability requirements do not apply to employer HSA contributions that are made “through a cafeteria plan.” If your cafeteria plan permits HSA-eligible participants to make pre-tax salary reduction HSA contributions, any matching (or other) employer contributions made by the employer are also treated as made “through a cafeteria plan.”
Instead of comparability, your company’s matching HSA contributions would be subject to the Code §125 nondiscrimination requirements–i.e., the eligibility, contributions and benefits, and key employee concentration tests. Participants’ pre-tax HSA contributions are also subject to these rules. In general, those tests provide more flexibility for employers wishing to vary HSA contributions on a nondiscriminatory basis, but even that flexibility has its limits. For example, if non-key employees do not contribute or make only small contributions, contributions by key employees could cause the cafeteria plan to fail the key employee concentration test. Thus, any matching contribution should be carefully designed to satisfy the applicable nondiscrimination rules.
Matching HSA contributions (like other employer HSA contributions) are generally treated as employer-provided coverage for medical expenses under an accident or health plan and are excludable from a participant’s gross income. Once your company’s matching HSA contributions are made, they are nonforfeitable; they cannot be subject to a vesting schedule or be returned to the employer if the participant terminates employment midyear.
Keep in mind that HSA contributions are subject to annual dollar limitations. All contributions that are made for a year to a participant’s HSA–whether by the participant, the company, or another entity or individual–must be aggregated for purposes of applying these limits. If your company decides to make matching HSA contributions, this should be reflected in the cafeteria plan document, the cafeteria plan summary, and other applicable employee communications (e.g., open enrollment materials).
