A column written by Dan Grinfas, specialist with the Oregon Bureau of labor and Industries, discusses how only some family relationships qualify for time off under the state and federal family leave acts. Here is the question he was asked and what he had to say.
Question: Our employee Sara just provided us notice that her daughter, a member of the Oregon National Guard, is being deployed to Iraq. In her letter, Sara explains that she and her husband will be caring for her 14-month-old grandson while her daughter is on active duty. She also states her belief that she is "legally entitled to 12 weeks off work to care for the child." We're willing to grant her some personal time off, but are we obligated to hold her job for 12 weeks?
Answer: No. The scenario you have described is not a qualifying event under the Oregon Family Leave Act or the federal Family and Medical Leave Act. Your company policy, not the law, will determine how long you hold Sara's job.
Under OFLA and FMLA, eligible employees are entitled to 12 weeks of parental leave when they have a newborn child, a newly adopted child or a newly placed foster child. Providing temporary care for a grandchild does not trigger the protections of leave laws.
If circumstances were different and Sara were to formally adopt her grandson, she would become eligible for job-protected leave as a new parent.
Similarly, if the grandchild were placed with Sara for foster care, she would be entitled to take up to 12 weeks of parental leave during the first year after the placement. The FMLA regulations state that while foster care placement with relatives can qualify for parental leave, state action must be involved in the removal of the child from parental custody, and that does not appear to be the case with Sara's grandson.
Although your employee will not qualify for parental leave, she may qualify for other types of leave under OFLA or FMLA. Presumably, Sara will be providing day-to-day care and financial support for her grandson, and that is enough to constitute an "in loco parentis" relationship under the leave laws.
Both OFLA and FMLA allow Sara to take protected time off if her "family member" has a serious health condition. Under FMLA, "family member" is normally limited to a parent, spouse or child. The OFLA definition is only slightly broader, because it also includes parents-in-law and same-sex domestic partners.
grandparents and grandchildren are not covered as family members.
However, because Sara now stands "in loco parentis" - in the place
of a parent - to her grandson, she will qualify for protected leave
under OFLA and FMLA if he has a serious health condition. Sara also
will qualify for protected leave under OFLA if her grandson has a
nonserious health condition requiring home care, such as an ear
infection or a case of the sniffles.