An Administrator's Guide to California Private School Law

Chapter 8 – Leaves And Absences

 Leave for a “qualifying exigency” arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty. 1157  Leave to care for a covered service member with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the service member (this leave can run up to 26 weeks of unpaid leave during the 12-month period). 1158

a. Definitions i. Child

The FMLA defines “child” as a “son or daughter.” 1159 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” includes a biological, adopted, foster child, stepchild, legal ward, or a child of a person standing in loco parentis who is under 18 years of age. A person is in loco parentis to a child if he or she assumes parental status and discharges parental duties. Legal adoption of a child is not necessary. 1160 Whether an employee stands in loco parentis to a child is a fact dependent inquiry, but the Department of Labor has provided examples of possible in loco parentis relationships. For example, an employee who provides day- to-day care for his or her unmarried partner’s child, even assuming there is no biological relationship between the employee and the child. Other examples include where a grandparent takes in a grandchild and assumes ongoing responsibility for raising the child because the parents are incapable of providing care, or where a family member assumes responsibility for raising a child after the death of the child’s parents. 1161 Whether a person provides financial support to a child may be a factor, but is not required. A son or daughter may also be 18 years of age or older if that person is incapable of self-care because of mental or physical disability at the time that FMLA leave is to commence. 1162 A child is “incapable of self-care” if he or she requires active assistance or supervision to provide daily self-care in three or more of the activities of daily living or instrumental activities of daily living, such as caring for one’s grooming and hygiene, bathing, dressing, eating, cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, using a post office, etc. 1163 The FMLA applies different definitions of a “son or daughter” for purposes of qualifying exigency leave and military caregiver leave. For qualifying exigency leave, a 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 covered active duty or call to covered active duty status, and who is of any age. 1164 Similarly, for military caregiver leave, a “son or daughter of a covered service member” means the covered service member’s biological, adopted, or foster child, stepchild, legal ward, or a child for whom the covered service member stood in loco parentis, and who is of any age. 1165

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 271