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uly 10, 2010

U.S. Department of Labor Clarifies Definition of “Son or Daughter” Under FMLA as Applied to “In loco parentis”

On June 22, 2010, the United States Department of Labor (“DOL”) issued an Administrator’s Interpretation clarifying the definition of “son or daughter” under the Family and Medical Leave Act (“FMLA”) to provide leave to employees who provide care for a child, without regard to the employee’s legal or biological relationship to the child. The full text of the Administrator’s Interpretation is available on the DOL’s website here.

An employee is entitled to up to 12 workweeks of unpaid FMLA 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. The FMLA defines “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.” According to the DOL, Congress intended for this definition to account for children who are members of non-traditional and merged families. The key to determining whether an in loco parentis relationship exists is the intention of the person to assume the status of a parent.  Therefore, an employee who actually takes part in the daily responsibility of caring for a child is entitled to leave, even if the employee is not legally or biologically related to the child. In addition, there is no limit to the number of parents a child may have under the FMLA (i.e., a child may have both biological parents and step-parents).

The phrase “in loco parentis” is commonly defined 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.” According to the DOL, federal regulations do not expressly require an employee to establish that he or she provides daily care and financial support for the child in order to be found to be in loco parentis. Nevertheless, courts have identified several factors to be considered when determining in loco parentis status, including the following: the age of the child; the degree to which the child is dependent on the person to be standing in loco parentis; the amount of support provided, if any; and the extent to which duties commonly associated with parenthood are exercised.

An employer with questions about whether an employee’s relationship to a child is covered by the FMLA may request that the employee provide reasonable documentation or a statement explaining the relationship. This statement may simply provide a general explanation of the in loco parentis relationship.

If you should have any questions regarding the DOL’s interpretation, or any other FMLA-related matters, feel free to contact us.

Putney, Twombly, Hall & Hirson LLP