(a) Spouse. Spouse means a husband or wife as defined or recognized
under State law for purposes of marriage in the State where the
employee resides, including common law marriage in States where it is
recognized.
(b) Parent. 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 in
paragraph (c) of this section. This term does not include parents "in
law."
(c) Son or daughter. For purposes of FMLA leave taken for birth or
adoption, or to care for a family member with a serious health
condition, 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.
(1) "Incapable of self-care" means that the individual requires
active assistance or supervision to provide daily self-care in three or
more of the "activities of daily living" (ADLs) or "instrumental
activities of daily living" (IADLs). Activities of daily living
include adaptive activities such as caring appropriately for one's
grooming and hygiene, bathing, dressing and eating. Instrumental
activities of daily living include cooking, cleaning, shopping, taking
public transportation, paying bills, maintaining a residence, using
telephones and directories, using a post office, etc.
(2) "Physical or mental disability" means a physical or mental
impairment that substantially limits one or more of the major life
activities of an individual. Regulations at 29 CFR 1630.2(h), (i), and
(j), issued by the Equal Employment Opportunity Commission under the
Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq., define
these terms.
(3) Persons who are "in loco parentis" include those with day-to-
day responsibilities to care for and financially support a child, or,
in the case of an employee, who had such responsibility for the
employee when the employee was a child. A biological or legal
relationship is not necessary.
(d) Next of kin of a covered servicemember. "Next of kin of a
covered servicemember" means the nearest blood relative other than the
covered servicemember's spouse, parent, son, or daughter, in the
following order of priority: Blood relatives who have been granted
legal custody of the covered servicemember by court decree or statutory
provisions, brothers and sisters, grandparents, aunts and uncles, and
first cousins, unless the covered servicemember has specifically
designated in writing another blood relative as his or her nearest
blood relative for purposes of military caregiver leave under the FMLA.
When no such designation is made, and there are multiple family members
with the same level of relationship to the covered servicemember, all
such family members shall be considered the covered servicemember's
next of kin and may take FMLA leave to provide care to the covered
servicemember, either consecutively or simultaneously. When such
designation has been made, the designated individual shall be deemed to
be the covered servicemember's only next of kin. See Sec.
825.127(b)(3).
(e) Adoption. "Adoption" means legally and permanently assuming
the responsibility of raising a child as one's own. The source of an
adopted child (e.g., whether from a licensed placement agency or
otherwise) is not a factor in determining eligibility for FMLA leave.
See Sec. 825.121 for rules governing leave for adoption.
(f) Foster care. Foster care is 24-hour care for children in
substitution for, and away from, their parents or guardian. Such
placement is made by or with the agreement of the State as a result of
a voluntary agreement between the parent or guardian that the child be
removed from the home, or pursuant to a judicial determination of the
necessity for foster care, and involves agreement between the State and
foster family that the foster family will take care of the child.
Although foster care may be with relatives of the child, State action
is involved in the removal of the child from parental custody. See
Sec. 825.121 for rules governing leave for foster care.
(g) Son or daughter on active duty or call to active duty status.
"Son or daughter on active duty or call to active duty status" means
the employee's biological, adopted, or foster child, stepchild, legal
ward, or a child for whom the employee stood in loco parentis, who is
on active duty or call to active duty status, and who is of any age.
See Sec. 825.126(b)(1).
(h) Son or daughter of a covered servicemember. "Son or daughter
of a covered servicemember" means the servicemember's biological,
adopted, or foster child, stepchild, legal ward, or a child for whom
the servicemember stood in loco parentis, and who is of any age. See
Sec. 825.127(b)(1).
(i) Parent of a covered servicemember. "Parent of a covered
servicemember" means a covered servicemember's biological, adoptive,
step or foster father or mother, or any other individual who stood in
loco parentis to the covered servicemember. This term does not include
parents "in law." See Sec. 825.127(b)(2).
(j) Documenting relationships. For purposes of confirmation of
family relationship, the employer may require the employee giving
notice of the need for leave to provide reasonable documentation or
statement of family relationship. This documentation may take the form
of a simple statement from the employee, or a child's birth
certificate, a court document, etc. The employer is entitled to examine
documentation such as a birth certificate, etc., but the employee is
entitled to the return of the official document submitted for this
purpose.
[73 FR 68082, Nov. 17, 2008]
