DOL Clarifies Definition of “Son Or Daughter” Under The FMLA As Applied To Employees Standing “In Loco Parentis,” Such As Employees Raising Children With Same Sex Partners And Grandparents Caring For Grandchildren

On June 22, 2010, the U.S. Department of Labor (DOL) issued Administrator’s Interpretation No. 2010-3, which provides clarification of the definition of “son or daughter” under the Family Medical Leave Act (FMLA) as it relates to employees who stand in loco parentis to a child. Specifically, the DOL found that an employee who provides either day-to-day care or financial support to a child may establish a loco parentis relationship and therefore, may be entitled to FMLA leave.

For purposes of leave taken for birth or adoption or to care for a family member with a serious health condition, the FMLA has defined “son or daughter” as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under age 18, or age 18 or older and incapable of self-care because of a mental or physical disability.” (emphasis added). The FMLA regulations define persons who stand in loco parentis to “include those with day-to-day responsibilities to care for and financially support a child” and further provide that “[a] biological or legal relationship is not necessary.” While the definition of son or daughter and in loco parentis seem clear, the DOL received several requests for clarification and guidance on whether an employee is entitled to FMLA leave for birth, bonding and care of a child, with whom the employee does not have a biological or legal relationship.

Relying on Congress’ intent, the FMLA and its implementing regulations, the DOL found that an employee does not have to have a biological or legal relationship to a child to take FMLA leave. Further, the DOL found that the “FMLA does not require an employee who intends to assume the responsibilities of a parent to establish that he or she provides both day-to-day care and financial support to be found to stand in loco parentis to a child.” (emphasis added).

The DOL illustrated its point by providing three examples in which an employee may be entitled to FMLA leave when standing in loco parentis to a child: (1) for the care of a child with a serious health condition where an employee provides day-to-day care for his/her unmarried partner’s child, but does not financially support the child; (2) for the birth of a child where an employee will share equally in the raising of the child with the child’s biological parent; and (3) for leave to bond with the child following placement or to care for the child in the event of a serious health condition where an employee will share equally in the raising of an adopted child with a same sex partner, but does not have a legal relationship with the child.

The DOL also noted there is no limit to the number of parents a child may have under the FMLA. The DOL provided two further examples of relationships in which an employee may be found to be in loco parentis without a legal relationship: (1) where a grandparent takes in a grandchild and assumes ongoing responsibility for raising the child because the child’s parents are incapable of doing so; and (2) where an aunt assumes responsibility for raising a child after the death of the child’s parents. However, the DOL clarified that an employee would not stand in loco parentis for a child if the employee simply cared for the child while the child’s parents were on vacation.

Should an employer question the relationship between the employee and the child, the DOL noted an employer may require the employee provide reasonable documentation or statement regarding the family relationship. However, the DOL also emphasized that the employee need only provide a simple statement asserting the requisite family relationship exists where there is no legal or biological relationship.

The DOL’s news release regarding the Interpretation stated that “this action is a victory for many non-traditional families, including families in the lesbian-gay-bisexual-transgender (LGBT) community, who often in the past have been denied leave to care for their loved ones.” The Secretary of Labor Hilda L. added that “the Labor Department’s action today sends a clear message to workers and employees alike: All families, including LGBT families, are protected by the FMLA.”

The DOL’s Interpretation, while clarifying the definition of “son or daughter” and “in loco parentis,” may prove to be difficult to apply as the employer’s determination of in loco parentis status will depend on the facts of each particular case. Employers are reminded in performing the in loco parentis analysis that (i) either day-to-day care or financial support may qualify an employee for such status in situations where an employee intends to assume the responsibilities of a parent for a child; and (ii) lack of a biological and/or legal relationship cannot be used as a factor to deny in loco parentis status.