Paid Leave Laws Expand to Reflect Evolving ‘Family’ Definition

State paid family and medical leave laws are set for further expansion this year as evolving family structures and social trends increasingly influence legislation and workplace policies to address the diverse caregiving needs of workers.

Connecticut and Washington on Jan. 1 enacted changes that broadened the definition of family members for whom employees can take paid leave, ensuring coverage is available to a wider variety of family relationships.

Meanwhile, Alaska, Missouri, and Nebraska are poised to implement new voter-approved paid leave laws later this year that guarantee access to time off with partial income replacement for the care of loved ones regardless of a worker’s legal or biological ties. They will join 15 states and Washington, D.C., that have similar mandates in place. Federal regulators and appeals courts are also weighing in on how family might be defined, potentially influencing how companies consider caregiving leave requests absent additional measures.

These laws and voluntary leave benefits employers offer to recruit and retain top talent go beyond the requirements of the federal Family and Medical Leave Act, which offers up to 12 unpaid weeks annually for the care of an immediate relative. State programs vary but cover various relationships like adult children, domestic partners, extended relatives, and even non-family members—also referred to as chosen families.

The growing recognition of inclusive leave policies mirrors societal shifts from restrictive definitions of family that often perpetuate workplace inequities, and the need to safeguard caregivers from adverse job consequences regardless of their family status, advocates and employment law scholars said.

Employers and policymakers are acknowledging “that workers need the ability to take time off from work to care for those they consider family, and that what that looks like is going to be different for everyone,” said Molly Weston Williamson, a senior fellow at the Center for American Progress who focuses on paid leave policy.

“People are living farther away from their family of origin than they have in the past,” and developing strong support networks with friends and neighbors who may eventually call on them when a serious health issue arises, she said. “This really emphasizes that all of us are relying on a broader understanding of what a family is for the care that we need, and employers need to build policies reflecting the way that we live.”

Voluntary Benefits

The Covid-19 pandemic and the resulting tight labor market have highlighted gaps in employment policies for caregivers, along with their significant human and economic impact on the workforce.

As the country remains an outlier among the world’s wealthy nations that do guarantee paid leave for family and medical needs, caregiving has increased significantly in recent years.

Fifty-three million adults provide care for a spouse, elderly parent, or special-needs child in 2023, a jump from 45 million in 2015, according to a recent study from Guardian Life Insurance Company of America. Meanwhile, caregiving has cost the US economy nearly $44 billion lost jobs numbering more than 650,000 and almost 800,000 individuals with absenteeism issues at work, researchers found.

Since the pandemic, employers offered leave benefits like telework, time off, and hybrid work schedules to help caregivers balance their dual responsibilities, attorneys said.

Those with voluntary benefits that go beyond legal requirements should develop and uniformly apply written procedures to mitigate potential legal risks, according to attorneys, as an FMLA violation claim could also trigger liability under Title VII of the 1964 Civil Rights Act if a leave policy unintentionally affects employees based on protected characteristics like race or sex.

“Like any leave policy, the definitions of who is eligible and what situations an employee can take that leave are crucial in drafting a policy,” said Jonathan Crotty, head of Parker Poe Adams & Bernstein LLP’s employment & benefits practice group.

Litigation Landscape

The changing approach to caregiving leave has the potential to redefine future legal standards regarding leave, attorneys said.

Employers have long navigated a gray area when assessing federal leave requests around the ambiguity of “in loco parentis.” This refers to a person who assumes parental responsibilities of caring for and financially supporting a child who is 18 or older “and incapable of self-care because of a mental or physical disability” regardless of legal or biological relationship.

The US Labor Department clarified in guidance in April 2023 that grandparents or other relatives like siblings may stand in loco parentis and therefore entitled to FMLA leave.

The scope of this caregiving relationship has been subject to litigation, however.

The US Court of Appeals for the Sixth Circuit went to the heart of the issue in a December opinion, ruling that an in loco parentis relationship can form between two adults, including siblings, if there’s clear evidence of intent to take on a parental role for an incapacitated person. This relationship doesn’t need to begin since the dependent sibling was a minor, and there is no legal precedent for such a narrow interpretation of “loco parentis,” a three-judge panel said.

Citing Sixth and Second circuit case law, the panel said the in loco parentis inquiry must consider evidence about how individuals perceive each other.

The panel’s ruling holds persuasive value beyond the Sixth Circuit’s jurisdiction and provides an opportunity for the DOL to clarify further for employers, attorneys said.

“It’s going to be something other courts can look at for guidance when interpreting a unique set of facts in similar cases,” said Aaron Holt, a management-side attorney at Cozen O’Connor P.C. “You’re going to see employers and courts focusing on whether there was an intention to form a family relationship.”

A 2017 Second Circuit order concerning an FMLA leave request to care for a grandparent also underscores employers’ assessment obligations, even if the request lacks specific details about the caregiving relationship.

Employers should carefully probe the nuances of caregiving relationships, review existing leave policies, and stay informed of nontraditional relationships to “determine whether they need to be adjusted based on changing times,” Crotty said.