On June 22, the U.S. Department of Labor (DOL) significantly increased the number of employees who will be eligible to take Family and Medical Leave Act (FMLA) leave to care for a child, by broadening the definition of who constitutes a "son or daughter" under the Act. As a result, domestic partners and other individuals who may not have previously been considered a qualifying parent of a child will now be deemed to meet this revised definition and be entitled to FMLA leave.

As it has done several times this year with regard to Fair Labor Standards Act issues, the DOL acted by issuing an Administrator's Interpretation. This latest interpretation (No. 2010-03) broadens the meaning of "son or daughter" as it applies to an employee who stands in loco parentis to a child. In loco parentis commonly refers to an individual who has assumed the position and the obligations of a parent without going through formal legal channels.

Enacted in 1993, the FMLA provides eligible employees with up to 12 workweeks of unpaid 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."1 The FMLA defines "son or daughter" to include "biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis." An individual standing in loco parentis can include a person without a biological or legal relationship to the child.

The FMLA regulations define employees standing "in loco parentis" to "include those with day-to-day responsibilities to care for and financially support a child."2 Traditional interpretation of this section considered in loco parentis standing to be dependent upon providing a child with both financial support and day-to-day care. However, the DOL's new interpretation appears to rely on the word "include" to allow for either day-to-day care or financial support to establish an in loco parentis relationship, including a scenario where an employee intends to assume the responsibilities of a parent.

The DOL's Wage and Hour Division Deputy Administrator Nancy J. Leppink explained that whether an employee is standing in loco parentis will depend on the particular facts of a situation, emphasizing that "the fact that a child has a biological parent in the home, or has both a mother and a father, does not prevent a finding that the child is the "son or daughter" of an employee who lacks a biological or legal relationship with the child for purposes of taking FMLA leave." The DOL reached this conclusion because "neither the statute nor the regulations restrict the number of parents a child may have under the FMLA."

The DOL's interpretation was clearly designed to extend FMLA rights to families with same-sex partners to the extent that such families did not qualify in the past under the previous interpretation of in loco parentis. But employers should be aware that the DOL's action will have implications that reach beyond such families, and extend in loco parentis status and FMLA leave rights to other types of "nontraditional" arrangements. These include grandparents who take in grandchildren whose parents are incapable of providing care for them, and an unrelated adult, such as a parent's opposite-sex boyfriend or girlfriend, who has day-to-day childcare responsibility. In fact, the DOL stated that "[n]o one who steps in to parent a child when that parent's biological parents are absent or incapacitated should be denied leave by an employer because he or she is not the legal guardian."

The interpretation also makes clear that the new standard applies to leave taken for bonding with a newborn child, even if there is no prior record of the employee providing financial support or having day-today responsibilities, provided the employee intends to do so in the future. As the DOL stated, "an employee who will share equally in the raising of a child with the child's biological parent would be entitled to leave for the child's birth because he or she will stand in loco parentis to the child." Moreover, the new standard will apply to leave taken by an employee to bond with newly adopted children in both same-sex and opposite-sex relationships.

The one limitation that DOL provided to this new interpretation is a scenario where an employee would step in to care for a child when the parents are on vacation.

Where questions arise about an employee's in loco parentis status, an employer may require an employee to provide reasonable documentation of the relationship. However, the DOL's regulations, which were emphasized in the DOL's interpretation, only require the employee to provide a "simple statement" asserting the requisite family relationship.3

Footnotes

1. 29 U.S.C. § 2611(12).

2. 29 C.F.R. § 825.122(c)(3).

3. 29 C.F.R. § 825.122(j); 73 Fed. Reg. 67,952 (Nov. 17, 2008).

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