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Nov07

FMLA Entitlement for Legal Guardians

Under FMLA, is a legal guardian entitled to leave in order to care for his/her ward? What if the ward were a biological sibling?

Yes, guardians or persons acting in loco parentis (in the place of a parent) are entitled to FMLA leave to care for their wards. And, according the the U.S. Department of Labor, there need not be a legal or biological relationship between the two. As long as the guardian is responsible for the day-to-day care of the child, and financially responsible for him or her, the guardian is entitled to up to 12 weeks of unpaid leave under the Family and Medical Leave Act, or FMLA. Presumably they are also entitled to leave to bond with the child, as long as it is taken within the first year of the placement.

The regulations do permit the employer to examine documents that verify the relationship, but these documents can include a written statement by the guardian that the young person is his or her responsibility. Other acceptable documents would be adoption papers or papers showing legal guardianship. The employer must return the documents to the employee after they have been examined.

The question does not mention the age of the ward, so we are going to assume that the ward is under the age of 18. In some cases, a parent can take FMLA to care for a child over the age of 18 with a serious health condition, if that child meets the legal definition of a disability and is unable to care for him or her self. Presumably, this also applies to guardians, but this situation is so unusual that you would probably want to check with the U.S. Department of Labor.

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This entry was posted on Friday, November 7th, 2008 at 10:42 am and is filed under
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4 Responses to “FMLA Entitlement for Legal Guardians”

  1. Sandra Fontan Says:

    When this next statement was made, was this again unpaid? Presumably they are also entitled to leave to bond with the child, as long as it is taken within the first year of the placement.

  2. Caitlin Says:

    Hi Sandra! FMLA is always unpaid. A very few states offer paid parental leave, but leave under the federal FMLA law is always unpaid.

    No, there is no second entitlement for leave under FMLA. Technically, the federal Family and Medical Leave Act says nothing about bonding with a child, and neither do the regulations. While most parents do bond with a newborn, newly adopted or new foster child during the 12 weeks to care for the child, the purpose of FMLA from an HR standpoint is to care for the child.

    The good news is that since this post was written, U.S. Department of Labor regulations make it even easier for the caretaker who is not a legal guardian or parent to take up to 12 weeks off to bond with the child. However, that person is not entitled to a second 12 weeks when or if the child is adopted. HTH, and thanks for reading the blogs!~Caitlin

  3. Renita Jones Says:

    Hey I have a question. Where or What website can you find the downloadable forms for Legal guardianship? I have a son who in constant care of husband to be due to the fact that I travel alot with my sports team, and he needs to apply for FMLA to help with my child. He does most of the day-to-day with my son. What is the website, or where do I go to download. thanks in advance.

  4. Caitlin Says:

    Hi Renita! Good news! The U.S. Department of Labor has revised these regulations under the Obama administration. A step-parent who is not the childs legal guardian can now take FMLA to care for a child with a serious health condition. So can a grandparent, aunt, uncle or family friend. The adult does have to be acting “in loco parentis” — in place of the parent — but there is no limit to the number of adults that can be included. No proof is necessary other than a written statement from the adult that he or she has parental responsibilities for the child. The adult does not have to assume financial responsibility for the child to take FMLA.

    If the employer is requiring proof that your husband is the childs legal guardian, he should file a complaint with the U.S. Department of Labor.

    Each state has different papers for legal guardianship, and you will need to consult an attorney and go to court to estblish a legal guardianship. You will most likely need the biological fathers permission as well. At a minimum, you should leave a medical power of attorney with your husband. This will give him the legal right to seek healthcare for your son if he is injured in your absence. HTH, and thanks for reading the blogs!~ Caitlin

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