More People May Care for Children Under FMLA

By: Jeanine L. Poole
New Hampshire Employment Law Letter

August 2010

On June 22, 2010, the Wage and Hour Division of the U.S. Department of Labor (USDOL) issued an interpretive letter (No. 2010-3) that clarifies the definition of "son or daughter" under the Family and Medical Leave Act (FMLA) with regard to the aspect of the definition relating to "a child of a person standing in loco parentis." The USDOL's guidance provides that a person may be eligible for FMLA leave for the birth or placement of a child or to care for a son or daughter with a serious health condition even if that person has no biological or legal relationship to the child.

Background

As you know, the FMLA regulation defining a "son or daughter" for purposes of taking leave for the birth or adoption of a child or to care for a son or daughter with a serious health condition has always included "a child of a person standing in loco parentis" along with a biological, adopted or foster child, a stepchild, and a legal ward. The regulations also defined "persons who are "in loco parentis'" as including "those with day-to-day responsibilities to care for and financially support a child, or, in the case of an employee, who had such responsibility for the employee when the employee was a child. A biological or legal relationship is not necessary." 29 CFR §825.122(c)(3). Nevertheless, the USDOL noted in the preamble of its interpretation letter that it had received several requests for interpretation of whether leave may be taken by employees lacking a biological or legal relationship with the child and the agency took this opportunity to address that question.

It Takes a Village

In the guidance, the USDOL noted that Congress, when it enacted the FMLA, intended that the definition of "son or daughter" would reflect the reality that many children do not live in a traditional nuclear family with their biological father and mother but instead, are increasingly cared for by their adoptive, step or foster parents, their guardians, or sometimes their grandparents or other relatives or adults. The USDOL notes as well that Congress stated that the definition was intended to be construed to assure that an employee who actually has day-to-day responsibility for caring for a child is entitled to FMLA leave even if the employee does not have a biological or legal relationship to the child.

The guidance provides a thorough analysis of the common understanding of the term "in loco parentis" noting that it is understood to refer to "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." The key to determining whether the in loco parentis relationship is established is found in the intention of the person said to assume the status of a parent toward the child. The intent to assume such parental status can be inferred from the acts of the individual.

While the FMLA regulations define in loco parentis as including those with day-to-day responsibilities to care for and financially support a child, the USDOL's guidance says both that employeeS who have no biological or legal relationship with a child may nonetheless stand in loco parentis (and be entitled to FMLA leave) and 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 in loco parentis to a child.

So, How Big is Our Family?

The guidance provides a few examples of how the definition is to be applied:

• An employee who provides day-to-day care for his or her unmarried partner's child (with whom there is no legal or biological relationship) but does not financially support the child could stand in loco parentis to the child and be entitled to FMLA leave.

• The same principles apply to leave for the birth of a child and to bond with a child following a placement; so, an employee who will share equally in raising a child with the child's biological parent would be entitled to FMLA leave for the child's birth because he or she will stand in loco parentis to the child.

• Similarly, an employee who will share equally in the raising of an adopted child with a same sex partner but does not have the legal adoptive relationship with the child would be entitled to FMLA leave to bond with the child following placement or to care for the child if the child had a serious health condition.

• A grandparent may also assume in loco parentis status when the grandparent takes in a grandchild and assumes responsibility for raising a child because the parents are incapable of providing care or are absent. The same might happen when an aunt or uncle assumes responsibility for raising a child after the death of the child's parents.

Such situations may or may not result in an actual legal relationship between the child and the individual standing in loco parentis (such as adoption or legal ward).

The USDOL goes on to say that neither the FMLA nor the regulations restrict the number of parents a child may have under the FMLA. 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 a child. For example, where a child's biological parents divorce and each remarries, the child will be the "son or daughter" of both the biological parents and the stepparents and all four adults would have equal rights to FMLA leave to care for the child.

And How Do I Know?

The USDOL acknowledges that the determination whether either day-to-day care or financial support establishes an in loco parentis relationship will depend on a thorough examination of all the relevant factors. The agency also allows an employer, when it has questions about whether an employee's relationship with a child is covered by the FMLA, to require the employee to provide reasonable documentation or statement of the family relationship. It is essential to note, however, that the USDOL also says that "a simple statement asserting that the requisite family relationship exists is all that is needed in situations such as in loco parentis where there is no legal or biological relationship" so employers are not authorized to insist on any particular formal documentation of a relationship or the day-to-day care or financial support provided by an employee.

Bottom Line

This guidance provides helpful guidance regarding the USDOL's interpretation of "in loco parentis" and is a real benefit to same sex couples and other individuals in "non-traditional" families who find that they need leave for the birth, placement or care of a child with whom they have no biological or formal legal relationship.

 

Jeanine L. Poole is co-Leader of Sulloway's Labor and Employment practice group.