DOL Clarifies FMLA Allows for Leave to Care for Children Even Where No Legal or Biological Relationship Exists

On June 22, 2010, the U.S. Department of Labor’s Wage and Hour Division (WHD) issued its third Administrator’s Interpretation, in which it elaborated on the definition of “son or daughter” under the Family and Medical Leave Act (FMLA) as it applies to an employee standing “in loco parentis” to a child. Specifically, the WHD provided additional guidance regarding the ability of employees who do not have a biological or legal relationship with a child to take FMLA leave for birth, bonding, or to care for the child. 

The FMLA entitles an eligible employee to take up to 12 workweeks of job-protected leave for, among other reasons, the birth of a son or daughter of the employee, the placement of a son or daughter with the employee for adoption or foster care, 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.”

Literally meaning “in the place of a parent,” the phrase in loco parentis usually refers to a person who has put himself or herself in the situation of a lawful parent by assuming the obligations incident to the parental relation. A biological or legal relationship is not required; the FMLA regulations define in loco parentis as including those with day-to-day responsibilities to care for and financially support a child.

In the Administrator’s Interpretation issued yesterday, the WHD noted that the regulations do 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 in order to be found to stand in loco parentis to a child. The WHD provided several illustrative examples:

• 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, the employee could be considered to stand in loco parentis to the child and therefore be entitled to FMLA leave to care for the child if the child had a serious health condition;
• Where a grandparent takes in a grandchild and assumes ongoing responsibility for raising the child because the parents are incapable of providing care; or
• Where an aunt assumes responsibility for raising a child after the death of the child’s parents. 

Notably, the Administrator’s Interpretation does not alter the FMLA’s definition of “spouse,” nor could it without Congressional action. Accordingly, while this Interpretation will receive media coverage because it clarifies the interpretation of in loco parentis to allow same-sex married (and unmarried) persons to take leave for a partner’s legal and/or biological child under federal law, it does not allow employees to take leave to care for a partner who is not legally a “spouse” as defined by federal law. Congress defined “spouse” under federal law in 1996 when enacted the Defense of Marriage Act, which established a federal definition of marriage as a legal union between one man and one woman as husband and wife, and a “spouse” as only a person of the opposite sex who is husband or wife.

The Administrator’s Interpretation should serve simply as a reminder to employers that a legal or biological relationship is not necessary to take FMLA leave related to a child. Rather, either day-to-day care or financial support may establish an in loco parentis relationship where the employee intends to assume the responsibilities of a parent with regard to a child.  In all cases, however, whether an employee stands in loco parentis to a child will depend on the particular facts. 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 a statement of the family relationship. Under the existing regulations, a simple statement asserting the existence of the requisite relationship is all that is needed.

For more information, please contact the Seyfarth attorney with whom you work or any Labor & Employment attorney on our website.