On June 22, 2010, the U.S. Department of Labor ("DOL")
issued an Administrative Interpretation Letter (No. 2010-3)
clarifying who may take time off under the Family and Medical Leave
Act ("FMLA") to care for a newly born, adopted, or sick
child. According to the DOL, the interpretation letter was issued
in response to several questions about when an employee with no
legal or biological relationship to a child is considered to be
standing "in loco parentis" under the FMLA and entitled
to leave.
The FMLA generally allows employees to take up to 12 work weeks of
unpaid leave during any 12-month period 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. Under the FMLA, the
definition of "son or daughter" 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."
In its interpretation letter, the DOL interpreted the "in loco
parentis" provision broadly, concluding that employees who
have no biological or legal relationship with a child may
nonetheless stand "in loco parentis" to the child and be
entitled to FMLA leave. In order for an employee to establish an in
loco parentis relationship with a child, the employee need only
establish that he or she provides day-to-day care for the child
or financial support. It is not necessary that the
employee provide both day-to-day care and financial support.
Notably, under the DOL's broad interpretation, there is no
limit to the number of parents a child may have under the FMLA. For
example, if a child's biological parents divorce, and each
parent remarries, the child will be the "son or daughter"
of both the biological parents and the stepparents. All four adults
would be allowed to take FMLA leave to care for the child.
Likewise, unmarried or same-sex partners may be entitled to FMLA
leave if they otherwise stand in loco parentis with a child.
The DOL further clarified that, in determining whether an employee
is eligible for FMLA leave, an "employer may require the
employee to provide reasonable documentation or statement of a
family relationship." A simple statement indicating that the
requisite family relationship exists is sufficient in situations
such as in loco parentis where there is no legal or biological
relationship.
Employers must be aware of the DOL's recent guidance
interpreting the term "in loco parentis" broadly.
Employers should review their FMLA policies and modify them as
necessary. If you would like assistance in reviewing your policies,
please contact one of Larkin Hoffman's experienced
employment law attorneys.
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.
