Hunton Employment & Labor Perspectives

In what has been deemed a victory for many non-traditional families, on June 22, 2010, the U.S. Department of Labor (“DOL”) issued an opinion clarifying the definition of “son or daughter” under the Family and Medical Leave Act (“FMLA”).  Now, according to the Administrator’s Interpretation Letter No. 2010-3, any employee who “intends to assume the responsibilities of a parent with regard to a child” and has either “day-to-day” responsibilities for, or “financially supports” that child, is entitled to leave under the Act -- even if that employee does not have a traditional biological or legal relationship with the child.

In addition to biological and adopted children, the FMLA’s definition of “son or daughter” includes foster children, stepchildren, a legal ward, or a child of a person standing “in loco parentis.”  The DOL’s recent guidance focused on the definition of in loco parentis, which has been understood to mean “in place of a parent.”

Federal regulations define in loco parentis as those with day-to-day responsibilities to care for and financially support a child.  The DOL’s June 22 opinion, however, clarified that the definition is not intended to require that an employee standing in loco parentis both provide day-to-day care and financial support to the child.  Either factor, standing alone, can be enough to qualify that employee for leave if the employee intends to assume parental responsibilities for the child.

This clarification potentially entitles aunts, uncles, grandparents, or same-sex partners who are helping raise their partners’ adopted children, to 12 weeks of unpaid leave to care for a child who is newly adopted, born, or suffering from a serious health condition.

While employers are entitled to request that an employee provide written documentation verifying an in loco parentis relationship when applying for FMLA leave, employers are cautioned that the DOL’s guidance requires only “a simple statement asserting that the requisite family relationship exists.”  The DOL fails, however, to give any further guidance regarding the requirements for that “simple statement.”  Employers are encouraged to contact legal counsel should any questions arise regarding an employee’s entitlement to FMLA leave based on in loco parentis standing.