On June 23, 2010, the Department of Labor issued guidance to
clarify the definition of "son or daughter" under the
FMLA as it applies to an employee taking FMLA-protected leave for
the birth or placement of a child, to care for a newborn or newly
placed child, or to care for a child with a serious health
condition. The regulations define a son or daughter as a biological
or adopted child, foster child, a stepchild, a legal ward, or a
child of a person standing in loco parentis. The
Department of Labor did not modify the Act or its Regulations, but
merely clarified this definition.
As you are probably aware, the FMLA allows eligible employees to
take 12 workweeks of job-protected leave for the birth or placement
of a child, to care for a newborn or newly placed child, or to care
for a child with a serious health condition. The regulations define
a son or daughter as a biological or adopted child, foster child, a
stepchild, a legal ward, or a child of a person standing in
loco parentis, who is under the age of 18 or 18 years of
age or older and incapable of self-care because of mental or
physical disability.
Questions concerning who was eligible for FMLA under the definition
of in loco parentis spurred this clarification. In loco
parentis has been described as "a person who has put himself
in the situation of a lawful parent by assuming the obligations
incident to the parental relation without going through the
formalities necessary to legal adoption." Niewiadomski v.
U.S., 159 F.2d 683 (6th Cir. 1947). The DOL believed that
Congress intended the definition of what constituted a
"son" or "daughter" under the FMLA to reflect
that many children to not live in a traditional family. Therefore,
a broader understanding of the definition of an employee's son
or daughter was needed.
While the DOL found that there are many factors to determine if an
employee is standing in loco parentis to a child, the
guidance now makes clear that there is no requirement for a
biological or legal relationship with the child to stand in
loco parentis. For example, the leave can be extended to
domestic partners, grandparents, or other family members who
provide either day-to-day on-going care or
financial support for the child. As an example, 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." Likewise, "an employee who
will share equally in the raising of an adopted child with a same
sex partner, but who, does not have a legal relationship with the
child, would be entitled to leave to bond with the child following
placement, or to care for the child if the child had a serious
health condition, because the employee stands in loco
parentis to the child." Additionally, there are no
restrictions on the number of parents a child may have. For
instance, if a child's biological parents are divorced and
remarried, all four parents (biological and step-parents) are
entitled to FMLA leave related to the child.
It remains lawful to require the employee to provide reasonable
documentation or a statement of the family relationship if the
employer questions the employee's relationship with the child.
However, the DOL has found that a simple statement "asserting
the requisite family relationship exists is all that is needed in
situations such as in loco parentis where there is no
biological relationship."
Based upon the DOL's recent clarification, many employers may
need to adjust their FMLA policies to reflect the broader
definition of in loco parentis. Even if your policy
doesn't need to be revised, it is clear that employers must
ensure that their staff is well-trained to recognize what qualifies
as an employee's son or daughter and if that employee is
eligible for leave under FMLA to care for that son or daughter.
Employers should be careful to ensure that the policy is applied to
include all individuals who may qualify under the Department of
Labor's guidance, including domestic partners, grandparents, or
others without a legal relationship to a child who needs care as
long as that employee has stood in loco parentis. If you
have any questions as to how the policy should be applied to
specific situations, please contact Dinsmore & Shohl for
guidance.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.