Family and Medical Leave Act (FMLA) Protections When You're Filling a Parental Role

Families don’t all look the same, and the law is beginning to reflect that. If you’re helping raise a child, you may have rights under the Family and Medical Leave Act (FMLA), even if you’re not the child’s biological or legal parent.

Whether you’re bonding with a newborn, caring for a child with a serious health condition, or stepping in for a family member, the FMLA may still apply if you’re acting as a parent. Here’s how the law protects your ability to provide the care a child needs.

Understanding the FMLA

The FMLA allows eligible employees to take up to 12 weeks of job-protected leave for certain family or medical reasons. During this time, you won’t lose your job or your health insurance, and when you return, your employer must place you in the same or a comparable position.

While FMLA leave is typically unpaid, you may be able to use it alongside any paid time off your employer offers. The most important thing to remember is that your job is protected. That means your employer can’t retaliate or penalize you for taking FMLA leave.

Who's Eligible to Take FMLA Leave?

Before you can use FMLA leave, you’ll need to meet a few eligibility requirements. You may qualify if:

• You’ve worked for your employer for at least 12 months (these months don’t have to be consecutive);
• You’ve logged at least 1,250 hours in the past 12 months; and
• You work at a location where your employer has 50 or more employees within 75 miles.

If that sounds like you, and your employer is a private business with 50+ employees, a government agency, or a public or private school, you’re likely covered under the FMLA.

What Can You Use FMLA Leave For?

People use FMLA leave for a variety of important life events, including:

• Bonding with a new child through birth, adoption, or foster care
• Caring for a spouse, child, or parent with a serious health condition
• Recovering from a serious health condition of their own
• Supporting a military family member during deployment or after injury

In this section, we’re focusing on that first reason—taking leave to care for a child.

What If You're Not the Biological Parent?

The FMLA doesn’t just protect biological parents. If you’re in the role of a parent, you may be entitled to leave even if you're not legally or biologically related to the child.

This is referred to as “in loco parentis,” which simply means acting as a parent by providing day-to-day care, financial support, or both. The law recognizes that love, responsibility, and caregiving matter just as much as biology.

You don’t need to adopt the child or be listed on any legal documents, either. The law is more concerned with what you do than what your title says.

Acting as a Parent: Do You Qualify for FMLA?

You don’t need to be a biological or legal parent to be recognized under the FMLA. If you’ve stepped into a caregiving role, you may still qualify. Here are some signs that you might be considered “in loco parentis” (in the role of a parent):

• The child relies on you for everyday care and support
• You contribute financially to their needs
• You take on parenting responsibilities like helping with homework, cooking meals, or taking them to medical appointments
• You’ve assumed a caregiving role, even if the child’s biological parents are still involved

And here’s something important: under the law, a child can have more than two parents. That means a step-parent, grandparent, or long-term partner may also be eligible for FMLA leave when actively caring for a child.

FMLA in Everyday Life: When Caregivers Step Up

To make things clearer, here are a few real-world situations where someone might qualify for FMLA leave, even without being a legal or biological parent:

• You’re not married to your partner, but you’re helping raise their child and want to take leave to bond after birth or adoption.
• You’re a grandparent who’s been the primary caregiver for your grandchild, and now the child needs care for a serious health condition.
• After a sibling passes away, you take in your nephew and begin caring for him while he receives medical treatment.

In each of these scenarios, you may be considered in loco parentis under the law. That means you have the right to take job-protected FMLA leave to care for the child in your care.

Can Your Employer Ask For Proof?

Yes, your employer can request documentation, but only within reasonable limits. In most cases, a simple written statement will do.

Something like, “This is my partner’s child, and I help raise them,” is often enough. You don’t need a court order, notarized paperwork, or a long trail of documents.

Whether you’re a legal parent or acting as one, the standard for showing your relationship is the same.

What About Older Children?

The FMLA usually applies to children under 18, unless the child is 18 or older and can’t care for themselves due to a disability. If you’re caring for an adult child in this situation, you might still qualify for FMLA leave.

However, in such cases, the rules are usually more specific. For more information, the Department of Labor recommends reviewing Fact Sheet #28K.

State Laws May Offer Even More Protection

Some states have their own laws regarding family leave. And they may be more generous than the federal rules.

These can include longer leave periods, looser eligibility rules, or even paid leave. The FMLA sets the minimum requirements, but states are free to establish more generous policies.

Therefore, depending on your location, you may have more options.

Your Rights Are Protected

The FMLA is designed to protect workers, so your employer can’t punish you for exercising your rights.

Retaliation isn’t always obvious. It might look like getting fired, having your hours cut, being assigned an unfavorable schedule, or even facing threats or intimidation.

If your employer takes any of these actions (or something similar) after you request or take FMLA leave, they could be breaking federal law.

What To Do If Something Doesn’t Feel Right

If you think your employer has violated your FMLA rights, you’ve got options. You can:

• File a complaint with the U.S. Department of Labor’s Wage and Hour Division
• Talk to an experienced employment lawyer
• Pursue a private lawsuit

You don’t have to navigate this on your own, and your rights are absolutely worth standing up for.

Contact Morgan & Morgan

If your FMLA rights have been ignored or you’ve faced pushback for trying to care for a child in your life, Morgan & Morgan has an army of employment lawyers who may be able to help. Reach out today to explore your options. We offer a free case review.

This blog post is based on fact sheets from the U.S. Department of Labor and is for informational purposes only.