Is an employee eligible for CFRA or FMLA leave to care for a pregnant daughter?

An employee may take Family and Medical Leave Act (FMLA) or California Family Rights Act (CFRA) leave for a serious health condition involving the employee's child. The CFRA defines child to include a biological, adopted or foster child, a stepchild, a legal ward, a child of an employee or the employee's domestic partner, or a person to whom the employee stands in loco parentis The FMLA definition is similar to the CFRA, but there are important differences. The FMLA doesn’t cover children of domestic partners and, most notably, the FMLA only covers adult children (age 18 or older) if the adult child is incapable of self-care due to a disability.

The U.S. Department of Labor has issued guidance saying pregnancy-related impairments may be considered disabilities if they substantially limit a major life activity. If the employee’s adult daughter has a pregnancy-related impairment, such as pregnancy-related sciatica, that substantially limits one or more of her major life activities, such as walking or lifting, then she has a disability. If she is incapable of self-care due to that disability (e.g., she needs active assistance in cooking, cleaning, and shopping), then she qualifies as an adult daughter under the FMLA.

If the employee is not eligible to take FMLA/CFRA, the employee may have other protections, depending upon the policies or practices that your organization may have in place.

Under California's mandatory paid sick leave law, employees must be allowed to use accrued paid sick leave for a family member, which includes the employee's parent, parent-in-law, child, spouse, registered domestic partner, grandparent, grandchild, sibling and a “designated person.” Under the paid sick leave law, a designated person is any person identified by the employee at the time the employee requests paid sick leave, though an employer may limit an employee to one designated person per 12-month period for purposes of paid sick leave. The law covers time off for an existing health condition or for preventive care.

The definition of "child" under the mandatory paid sick leave law applies regardless of age or dependency status.

Some companies have provided personal leave for employee use in the event of an emergency or family issue. Most personal leaves are discretionary as to whether the company would grant a personal leave, and the decision is based upon the business needs of the organization at the time of request.

For example, if your company already has people off work on vacation, out sick or on a leave of absence, then your company has discretion in deciding whether to grant a personal leave and for how long.

If, however, the company has granted a personal leave to another employee in the same situation, then the company should follow its own past practice to prevent an employee from claiming discrimination if that employee's leave request is denied.

Read more about CFRA and FMLA Qualifying Reasons and Paid Sick Leave in the HR Library.