HR Hotline: Can FMLA Be Used to Care for an Ex-Spouse?

Q: An employee has requested FMLA time off to assist his “wife” in attending medical appointments for a serious health condition. However, we just learned they recently divorced, but he still wants to provide this care. Does the divorce change the situation?
A: It does change the applicability of the FMLA, but doesn’t necessarily mandate a change in your policy decision regarding your employee’s time off.
One of the situations in which the FMLA provides for job-protected time off from work for eligible employees working at a covered employer is where the time off is needed to provide care for an employee’s spouse with a serious health condition.
The definition of spouse under the FMLA has been updated to reflect a wider range of recognized personal relationships:
“Spouse means a husband or wife as defined or recognized in the state where the individual was married and includes individuals in a common-law marriage or same-sex marriage.”
Note, however, it does not include “ex-spouses,” so you are not legally obligated to provide leave for your employee under the circumstances you describe.
You may, of course, allow time off as a positive employee relations practice under your personnel policies, but it would be best to clarify that it is not a qualifying FMLA leave.
That way, you’ll avoid creating an expectation of legal rights that don’t exist.

HR problems? Email or call Mark Soycher at the HR Hotline (860.244.1900 | @HRHotline)