The Department of Labor Expands the Definition of Parent Under the FMLA
By Ryan T. Neumeyer
On June 22, the U.S. Department of Labor (DOL) significantly increased the number of employees who will be eligible to take Family and Medical Leave Act (FMLA) leave to care for a child, by broadening the definition of who constitutes a "son or daughter" under the Act. The FMLA defines "son or daughter" to include "biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis." The DOL acted by issuing an Administrator's Interpretation (No. 2010-03) which broadens the meaning of "son or daughter" as it applies to an employee who stands in loco parentis to a child. In loco parentis commonly refers to an individual who has assumed the position and the obligations of a parent without going through formal legal channels.
According to the DOL:
- It is the Administrator's interpretation that the regulations do 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...[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...Neither the statute nor the regulations restrict the number of parents a child may have under the FMLA.
- Examples of situations in which an in loco parentis relationship may be found include where a grandparent takes in a grandchild and assumes ongoing responsibility for raising the child because the parents are incapable of providing care, or where an aunt assumes responsibility for raising a child after the death of the child's parents. Such situations may, or may not, ultimately lead to a legal relationship with the child (adoption or legal ward), but no such relationship is required to find in loco parentis status. In contrast, an employee who cares for a child while the child's parents are on vacation would not be considered to be in loco parentis to the child.
The employer may require the employee to provide reasonable documentation that an employee is in loco parentis to a child, but a simple statement asserting that the requisite family relationship exists is all that is needed for such an employee to comply.
The DOL's Wage and Hour Division Deputy Administrator Nancy J. Leppink explained that "the 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." The DOL reached this conclusion because "neither the statute nor the regulations restrict the number of parents a child may have under the FMLA.”
The DOL’s opinion clearly applies to same sex parents, aunts and uncles raising a child, grandparents, etc. Further, DOL’s Interpretation of "in loco parentis" will presumably allow employees to use FMLA leave to care for a person who acted as the employee’s parent if they become ill, frail or elderly and in need of care, which would qualify under the FMLA. If you have any questions regarding this or any other matter please do not hesitate to contact Ryan at 216-447-1551.