In a news release last week, the U.S. Department of Labor announced the Wage & Hour Division had issued an Administrator’s Interpretation (No. 2010-3) clarifying the definition of “son or daughter” as it applies to an employee standing “in loco parentis” to a child under Section 101(12) of the Family and Medical Leave Act (FMLA).
The FMLA entitles an eligible employee to take up to 12 workweeks of job-protected leave, in relevant part, “[b]ecause of the birth of a son or daughter of the employee and in order to care for such son or daughter, . . .[b]ecause of the placement of a son or daughter with the employee for adoption or foster care,. . . and to care for a son or daughter with a serious health condition.” See 29 U.S.C. § 2612(a)(1)(A) - (C). 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— (A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability.” 29 U.S.C. § 2611(12).
“It is the Administrator’s interpretation 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 to stand in loco parentis to a child. . . . Neither the statute nor the regulations restrict the number of parents a child may have under the FMLA. For example, where a child’s biological parents divorce, and each parent 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 take FMLA leave to care for the child.”
If an employer has questions about whether an employee’s relationship to a child is covered under FMLA, the employer may require the employee to provide reasonable documentation or a statement indicating the family relationship. A simple statement asserting that the requisite family relationship exists is all that is needed in situations of in loco parentis where there is no legal or biological relationship.
Employers may have more “parents” working for them than they think. Not only biological mothers and fathers qualify for FMLA leave, but other adults may qualify in loco parentis as well. If you are an employer and you aren’t sure if an employee qualifies for FMLA leave, request documentation or a statement from the employee about the familial relationship.