United States: Family Medical Leave Act Broadly Interpreted by Department of Labor

FMLA OVERVIEW - SON OR DAUGHTER

In general, FMLA leave provides the ability to take leave in certain circumstances, including for the birth of a "son or daughter," to bond with a newborn or newly placed child or to care for a son or daughter in cases of a serious health condition. The FMLA does not cover all employers and, in some cases, does not cover all employees of an employer, but many employers have chosen to follow the FMLA although not legally required to. 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 who is either under 18 years old or is 18 years or older and incapable of self care because of a mental or physical disability.

DOL regulations provide that employees who are in loco parentis include those who have day-to-day responsibilities to care for and financially support a child (emphasis added). The employee does not have to have a biological or legal relationship with the child.

DOL INTERPRETATION

The DOL states that it has received several requests for guidance regarding application of the FMLA to employees with no legal or biological relationship to a child. DOL Interpretation No. 2010-3 interprets the DOL's regulation to read that the employee must have responsibility for either day-to-day care or financial support of the child. The important fact is the intent of the employee to assume the obligations of a parent with respect to the child. The DOL specifies examples of relationships that would allow an employee to claim the right to FMLA leave:

• A grandparent who assumes ongoing responsibility for a grandchild when the parents cannot care for the child.
• An aunt who raises a child after the child's parents die.
• An employee who will share equally in the raising of a child with a same-sex partner.

The Interpretation states that an employee can have in loco parentis status even if a child has a biological parent living at home or both a mother and father.

The in loco parentis relationship depends on facts which will not be known to the employer. While DOL regulations allow an employer to request reasonable documentation or a statement of the relationship from the employee, the Interpretation states 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."

The DOL states in the Interpretation that the Interpretation does not apply to an employee's right to take military FMLA leave for a son or daughter, since different definitions apply.

While the Interpretation does not have the force of law of the DOL regulations, it does indicate the current views of the agency on the facts.

WHAT EMPLOYERS SHOULD DO NOW.

Employers will want to check their FMLA policies, handbooks and communications to determine if they are consistent with this approach and whether requests for documentation will need to be changed.

Many of the rules applicable to FMLA leave are written without specific focus on the in loco parentis rules and use the terms husband, wife and spouse. This may make administration difficult to determine since it is not clear how the DOL's other regulations will apply. In addition, some employers have adopted leave policies that they believed were broader than FMLA - those policies may now be within the scope of this Interpretation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.