Department of Labor Clarifies Who May Take Leave to Care for Child Under FMLA

On June 22, 2010, the Department of Labor (DOL) issued an Administrative Interpretation clarifying the definition of “son or daughter” as it applies to an employee standing in loco parentis to allow individuals who provide day-to-day care of a child to take leave under the Family Medical Leave Act (FMLA). 

The FMLA entitles an employee to 12 workweeks of leave for the birth or placement of a son or daughter, to bond with a newborn or newly placed son or daughter, or to care for a son or daughter with a serious health condition.

The definition of “son or daughter” under the FMLA includes not only a biological or adopted child, but also a “foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.

In its Administrative Interpretation, the DOL focuses on the term in loco parentis citing court decisions finding that the key determination in such relationships is the intention of the person allegedly in loco parentis.  Current FMLA regulations define in loco parentis as including those with day-to-day responsibilities to care for and financially support a child.

Tying these two themes together, the DOL concludes that “the regulations do not require an employee who intends to assume the responsibilities of a parent establish that he or she provides both day-to-day care and financial support in order to be found to stand in loco parentis to a child.”

Following this statement, the DOL provides numerous examples of how an individual may qualify as a parent entitled to leave under the interpretation:

Where an employee provides day-to-day care for his or her unmarried partner’s child (with whom there is no legal or biological relationship) but does not financially support the child;

An employee who will share equally in the raising of a child with the child’s biological parent; and

An employee who will share equally in the raising of an adopted child with a same sex partner, but who does not have legally recognized obligations to care for the child.

The DOL notes also that neither the FMLA nor the FMLA regulations restrict the number of parents a child may have under the FMLA.  Thus, for example, where a child’s biological parents divorce, and each parent remarries, the child will be the “son or daughter” of both the biological parents and the stepparents and all four adults would have equal rights to take FMLA leave to care for the child.

The DOL provides the additional guidance that where an employer has questions about whether an employee’s relationship to a child is covered under FMLA, the employer may require the employee to provide reasonable documentation or statement of the family relationship. However, a simple statement asserting that the requisite family relationship exists is all that is needed in situations such as in loco parentis where there is no biological relationship or other legal relationship.

It is important to note that while the Administrative Interpretation may not be controlling in court, it will most likely be followed by the DOL, which is responsible for enforcing the FMLA.  We note, also, that that this Interpretation Letter does not address an employee’s entitlement to take military FMLA leave for a son or daughter, which is determined by separate definitions.

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