United States Department Of Labor Clarifies Definition Of “Son And Daughter” Under The Family And Medical Leave Act

Pursuant to the Family and Medical Leave Act (“FMLA”) workers may take up to 12 weeks of unpaid leave during any 12-month period to care for loved ones or themselves. Employees may also take time off under the FMLA for the adoption or birth of a child. On June 22, 2010, the United States Department of Labor (“DOL”) issued a news release stating that it has clarified the definition of “son and daughter” under the FMLA “to ensure that an employee who assumes the role of caring for a child receives parental rights to family leave regardless of the legal or biological relationship.”

The Deputy Administrator of DOL’s Wage and Hour Division, Nancy J. Leppink, issued an Administrator’s Interpretation which clarifies that the rights to take leave for the adoption or birth of a child “extend to the various parenting relationships that exist in today’s world.” According to the Administrator’s Interpretation, 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, who is— (A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability.”

The Wage and Hour Division received requests for guidance on the issue of “whether employees who do not have a biological or legal relationship with a child may take FMLA leave for birth, bonding, and to care for the child.” The Administrator stated, “Congress intended the definition of ‘son or daughter’ to reflect ‘the reality that many children in the United States today do not live in traditional ‘nuclear’ families with their biological father and mother.’” Many employees “who find themselves in need of workplace accommodation of their child care responsibilities are not the biological parent of the children they care for, but their adoptive, step, or foster parents, their guardians, or sometimes simply their grandparents or other relatives or adults.”

The definition of “son or daughter” was intended by Congress “to 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.’” According to the Administrator, the concept of in loco parentis “embodies the two ideas of assuming the parental status and discharging the parental duties.” To determine if in loco parentis has been established, one must look “‘to the intention of the person allegedly in loco parentis to assume the status of a parent toward the child.” The answer to the question of whether an employee stands in loco parentis will depend on multiple factors.

The Administrator interpreted the FMLA regulations to “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 Administrator gave the following example: “[W]here 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.” Also, if an employee who does not have a legal relationship with an adopted child with whom he or she will share equally in raising with a same sex partner, the employee would be entitled to leave following placement of the child with the employee and his or her partner or if the child has a serious health condition.

“[T]he 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.” Where a child’s biological parents divorce and remarry, “both the biological parents and the stepparents . . . would have equal rights to take FMLA leave to care for the child.”

If an employer has a question about whether or not an employee’s relationship to a child is covered by the FMLA, “the employer may require the employee to provide reasonable documentation or [a] statement of the family relationship.” However, the Administrator stated, “ A simple statement asserting that the requisite family relationship exists is all that is needed in situations such as in loco parentis where there is no legal or biological relationship.”

What This Means To You

Employers are advised to review their FMLA and leave policies to ensure they are in accordance with this new Administrator’s Interpretation and extend appropriate leave to employees who assume the role of caring for a child “regardless of the legal or biological relationship.”


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Bruce A. Scheidt, Laura Izon Powell or David W. Tyra | 916.321.4500