My employee wants to take federal Family and Medical Leave Act (FMLA) leave when her daughter has a baby. Can I deny her request?
Typically, an employee asking for time off work to be with her adult daughter for the birth of a child would not be a basis for FMLA, absent some extenuating circumstances.
In normal pregnancy and childbirth situations, a time-off request for this purpose by a mother of a child would be more indicative of a personal leave.
Although personal leaves are not required by law, an employer may grant a personal leave. If a personal leave is granted, it should be consistent with existing policies and past practices.
In determining whether a request for an FMLA leave would be granted, you can require a Serious Health Condition Certification from her daughter’s medical provider.
In addition, it is important to know that FMLA provisions for care of a child distinguish between a child who is a minor and a child who is an adult.
FMLA rights are required only for a child who is under 18 years of age or a dependent adult child 18 years or older who is incapable of self-care due to a mental or physical disability recognized as such by the Americans with Disabilities Act. These conditions normally do not apply to an adult child having a baby, but should always be considered in making an FMLA determination.
The other basis for an FMLA leave might be baby bonding. Although a baby bonding request usually is made by a biological, adoptive or foster parent, the law does recognize that other individuals may have these rights if they fulfill the role of a parent or step in the shoes of a parent. That provision in the law, normally referred to as loco parentis, does not require a biological or legal relationship, such as a legal guardian.
Both the FMLA and the California Family Rights Act (CFRA) have very broad definitions for “parent.” The CFRA regulations define parent as follows:
“Parent” means a biological, foster, or adoptive parent, a stepparent, a legal guardian, or other person who stood in loco parentis to the employee when the employee was a child. A biological or legal relationship is not necessary for a person to have stood in loco parentis to the employee as a child. Parent does not include a parent-in-law.
Circumstances that may involve loco parentis might include situations wherein the mother is mentally or physically unable or unfit to care for a child, or if the mother is incarcerated, deceased or the child has been taken away from the mother by Child Protective Services or a court. Because requests in these situations are unusual, it is best to consult with legal counsel before making an FMLA determination.