On June 22, 2010, the Department of Labor issued a formal Administrator's Interpretation1 ("Interpretation") clarifying the term "son or daughter" under the Family and Medical Leave Act ("FMLA"), and broadening the definition of who stands "in loco parentis" for purposes of the Act. [DOL Administrator's Interpretation No. 2010-3.] The broadened definitions greatly expand the employees who are entitled to rights under the FMLA as related to the birth or care of a child. The term "in loco parentis" now includes anyone who intends to provide day-to-day care and/or financial support, including unmarried partners, stepparents, same-sex partners, grandparents, etc.
The FMLA entitles an eligible employee to take up to 12 workweeks of leave "[b]ecause of the birth of a son or daughter of the employee," "[b]ecause of the placement of a son or daughter with the employee for adoption or foster care," and to care for a son or daughter with a serious health condition. 29 U.S. C. § 2612(a)(1)(A)-(C); 29 C.F. R. § 825.200. The FMLA defines a "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." According to the Department of Labor's new Interpretation, the definition of "in loco parentis" should be "construed to ensure that an employee who actually has day-to-day responsibility for caring for a child is entitled to leave even if the employee does not have a biological or legal relationship to that child." "The key in determining whether the relationship of in loco parentis is established is found in the intention of the person allegedly in loco parentis to assume the status of a parent toward the child." Interpretation, p. 2 (emphasis added). The fact that a child has both a mother and a father, or has a biological parent in the home, does not prevent a finding that the child is also the "son or daughter" of an employee. There is no restriction on the number of parents having rights under the FMLA regarding a particular child.
Although not discussed in the DOL Interpretation, the broadened definition of "in loco parentis" would seemingly also apply to employees seeking leave under the FMLA to care for a "parent" with a serious health condition. Thus, an employee could take FMLA leave to care for anyone who stood in loco parentis to the employee when the employee was a child; i.e. a stepparent, a parent's same-sex partner, grandparent, etc. Note, however, that this Interpretation does not address an employee's entitlement to take military FMLA leave for a son or daughter, as there are separate definitions that apply to that set of rights.
Where an employer questions the status of the employee as in loco parentis, the employee need only submit a simple statement asserting that the necessary family relationship exists to be eligible for FMLA benefits. Employers are advised to review their FMLA policies and remove any language that is inconsistent with this new Interpretation.
Footnotes
1. The Department of Labor recently announced that it would no longer issue fact-specific Opinion Letters in response to individual inquiries, but will instead use such inquiries as the basis for Administrator Interpretations that will have broad applicability across employers. These new Administrator Interpretations are intended to retain effect under the Portal-to-Portal Act which provides employers a good-faith defense when they act in reliance on the Interpretations, however such effect has yet to be tested in the courts.
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