The federal Family and Medical Leave Act (FMLA), the Massachusetts Paid Family and Medical Leave Act (PFML) and the Massachusetts Earned Sick Time law (EST) all provide time off for an employee to care for a family member who is ill.  Here’s the issue: they all have different definitions of ‘family member.’

The definitions can be a quagmire for employers when they are presented with a leave request by an employee to care for a family member. An employee may qualify for leave under the PFML to care for his mother-in-law as she recovers from surgery, but the leave will not qualify for FMLA, as the FMLA does not provide leave for parents of spouses.

There are varying definitions even within our own state laws. An employee who requests PFML leave to care for her domestic partner after surgery will likely qualify, but if she wishes to use EST to cover the PFML’s seven-day waiting period for benefits, she will find that EST does not cover a domestic partner, only a ‘spouse.’  Of course, her employer may have a more expansive definition of family in its sick time policy than that required by the EST law.

Employers often seek to run various leaves of absence concurrently. The different definitions of family outlined below mean that when you receive a request for time off for a family member, it is important to review the following requirements of each law before designating the leave:

FMLA (29 U.S.C. 2601, et seq.; 29 CFR Part 825)

The 30-year-old FMLA has the narrowest definition of family member.  FMLA leave may only be taken “In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.”

Parent means a biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the employee when the employee was a son or daughter as defined below. This term does not include parents “in law.”

Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under state law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either:

(1) Was entered into in a State that recognizes such marriages; or

(2) If entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.

Son or daughter means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under age 18, or age 18 or older and “incapable of self-care because of a mental or physical disability” at the time that FMLA leave is to commence.

PFML (M.G.L. ch. 175M; 458 CMR 2.00)

Under the PFML, “Family leave shall be available to any covered individual to care for a family member with a serious health condition.” The PFML defines family as those included in the FMLA definition of family, plus domestic partners, parents of spouses and domestic partners, grandparents and grandchildren, and siblings.

Family Member.  The spouse, domestic partner, child, parent or parent of a spouse or domestic partner of the covered individual; a person who stood in loco parentis to the covered individual when the covered individual was a minor child; or a grandchild, grandparent or sibling of the covered individual.

Domestic Partner.  A person 18 years of age or older who:

(a)   is dependent upon the covered individual for support as shown by either unilateral dependence or mutual interdependence that is evidenced by a nexus of factors including, but not limited to:

1. common ownership of real or personal property;
2. common householding;
3. children in common;
4. signs of intent to marry;
5. shared budgeting; and
6. the length of the personal relationship with the covered individual; or

(b)   has registered as the domestic partner of the covered individual with any registry of domestic partnerships maintained by the employer of either party, or in any state, county, city, town or village in the United States.

Child.  A biological, adopted or foster child, a stepchild or legal ward, a child to whom the covered individual stands in loco parentis, or a person to whom the covered individual stood in loco parentis when the person was a minor child.

Parent.  The biological, adoptive, step- or foster-mother or father of the covered individual.

EST (M.G.L ch. 149 , § 148C; 940 CMR 33.00)

Finally, the Massachusetts EST law provides that EST may be used to “care for the employee’s child, spouse, parent, or parent of a spouse, who is suffering from a physical or mental illness, injury, or medical condition that requires home care, professional medical diagnosis or care, or preventative medical care.”  Note that EST can be used for a wider variety of purposes than FMLA or PFML, but when the family member has a serious health condition it may run concurrently with FMLA, PFML, or both, provided that the family member meets the definitions of each law.

EST shall be provided by an employer for an employee to care for the employee’s child, spouse, parent, or parent of a spouse.

Parent. A biological, adoptive, foster or step-parent of an employee or of an employee’s spouse; or other person who assumed the responsibilities of parenthood when the employee or employee’s spouse was a child.

Spouse.  Meaning given this term by the marriage laws of the commonwealth.

Child.  A biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person who has assumed the responsibilities of parenthood.

AIM members with questions about a leave request, or any other human resources matter, may contact the AIM Employer Hotline at 800-470-6277.