The Family Medical Leave Act (“FMLA”) allows eligible employees

[1] to take up to 12 weeks of leave 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. 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.”

The U.S. Department of Labor (“DOL”) recently issued an Administrative Interpretation making it clear that eligible employees are entitled to take FMLA leave for the birth, bonding or to care for the child of a domestic partner, including a same-sex domestic partner, as well as for any other children for whom an employee has responsibility — either financially or as a caregiver.  The DOL reasons that these caregivers are entitled to the leave because they are standing in “loco parentis” even though they may have no biological or legal relationship with the child.  The DOL states that an employee stands in “loco parentis” if s/he has either day-to-day responsibilities for care or responsibility for financial support.

The DOL issued the interpretation in response to employer inquiries about when an employee is considered to be standing “in loco parentis” under the FMLA. In issuing the interpretation, the DOL stated that it was simply clarifying what it believes to have always been the rule.  In the Interpretation, DOL explains that Congress intended the definition of “son or daughter” to reflect the reality that many children in the Unites States do not live in traditional “nuclear” families.  The DOL noted that Congress included the term “in loco parentis” to make it clear that an employee who has day-to-day responsibility for caring for a child is entitled to leave, regardless of the legal or biological nature of their relationship.

The Interpretation states that an employer must review multiple factors to determine if an employee stands “in loco parentis” to a child.[2]  Specifically, the employer should look at:

  • the age of the child;
  • the degree to which the child is dependent on the person claiming to be standing “in loco parentis”;
  • the amount of support, if any, provided; and
  • the extent to which duties commonly associated with parenthood are exercised.

Going Forward

If an employee requests an FMLA leave to care for a child with whom s/he has no biological or legal relationship, the employer should look at the specific nature of the relationship.  If the employee provides either day-to-day care or financial support, an “in loco parentis” relationship probably exists.  Before you deny FMLA leave to a caregiver in a non-traditional family relationship, or if you are unsure about this or any other aspect of the FMLA, you should consult with legal counsel.

If you have any questions about FMLA Coverage, your obligations or any other employment issues, please do not hesitate to contact us.

[1] The FMLA applies to employers with 50 or more employees within a 75 mile radius.  To be entitled to FMLA leave, an employee of a covered employer must have been employed for one year and have worked a minimum of 1250 hours in the prior year.

[2] It is important to note that the mere fact that a child has biological parents does not preclude another person from having “loco parentis” standing.  As the DOL noted, “neither the statute nor the regulations restrict the number of parents a child may have under the FMLA.”