Human Resource Blog

FMLA for legal guardian

Can an employee use FMLA if they are the legal guardian of a sibling?

Yes, an employee can use FMLA if they are the guardian of any minor under the age of 18, and that minor has a serious health condition. The employer has the right to certify the serious health condition.

In fact, many employers are not aware of a loophole in the FMLA that permits an employee who is acting in the place of a parent to take FMLA, even when that employee is not the childs legal guardian. The employee can take time off to care for a foster child, an adoptive child or any child in the employees care. The employer has the right to request documentation of the relationship, but even a written note from the employee stating that the child is in their care, and they are acting as  a parent, is sufficient.

An employee cannot take FMLA to care for a child who is over 18, unless that child is permanently disabled and unable to care for himself or herself.

An employee can also take time off to bond with a new adoptive child or foster child who is under 18, during the first year the child is placed in the home.