A recent United States Department of Labor Administrator’s Interpretation (No. 2010-3) may change the way employers interpret and/or enforce the Family and Medical Leave Act (FMLA). This Interpretation clarifies the definition of “son or daughter” under Section 101(12) of the FMLA as it applies to employees who may have no legal or biological parent-child relationship but who stand “in loco parentis” to the child.
The FMLA requires that eligible employees be afforded a total of 12 weeks of FMLA leave during any 12-month period for a variety of circumstances, to care for a spouse, son, daughter or parent. The definition of son or daughter includes a biological, adopted or foster child, a stepchild, a legal ward or a child of a person standing in loco parentis. The DOL issued the Administrator’s Interpretation to assist employers in determining what constitutes an “in loco parentis” relationship sufficient to trigger FMLA coverage.
The federal regulations at 29 CFR § 825.122(c)(3) define a person who is “in loco parentis” as one with day-to-day responsibilities to care for and financially support a child. However, the Administrator’s Interpretation provides that either day-to-day care or financial support may establish an “in loco parentis” relationship where the employee intends to assume the responsibilities of a parent with regard to a child.
Under this Interpretation, the DOL has expanded FMLA coverage to non-traditional parental relationships. Thus, an employee who shares parental responsibilities for a same sex partner’s adopted child will be entitled to FMLA leave to care for or bond with the child, even though the employee has no legal or biological relationship with the child. A grandparent, who assumes day-to-day responsibility for the grandchild because the parents are unable to care for the child, may be eligible for FMLA leave.
While not specifically addressed in the Interpretation, it would appear that the expansive definition of “in loco parentis” would also apply to employees who seek FMLA leave to care for a parent who stood “in loco parentis” to the employee when the employee was a son or daughter. Using the above examples, an employee who was raised by a grandparent or a same sex partner as a child, may be eligible for FMLA leave to care for that “parent” if the “in loco parentis” relationship existed in the past.
As this clarification is made through a DOL interpretation, rather than by an amendment to the FMLA, it could be subject to change under a new administration. In the meantime, Employers should review their FMLA policies and revise any definition of son or daughter that is more restrictive than the DOL’s current clarification.
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