Who's Watching the Kid? The Department of Labor Expands the FMLA Definition of a Son/Daughter for the Purposes of Child-Related Leaves

Author:Mr James Smith, Gavin S. Appleby and Jeffrey J. Moyle
Profession:Littler Mendelson

The U.S. Department of Labor has greatly expanded the definition of "son/daughter" for purposes of child-related leaves under the Family and Medical Leave Act (FMLA). In doing so, the Obama Administration has opened the door to extending parental leave to many additional employees, including same-sex partners. On June 22, 2010, the Department of Labor (DOL) issued an interpretation letter clarifying the definition of in loco parentis under the FMLA. According to the DOL, in order to qualify for in loco parentis status under the FMLA, an employee need only establish one – not both – of the following elements: (1) he or she provides day-to-day care for the child; or (2) he or she is financially responsible for the child.

Under the FMLA, eligible employees are entitled to up to 12 weeks of unpaid leave for the birth, placement, or adoption of a child, or to care for a son or daughter with a serious health condition. According to the FMLA regulations, a son or daughter includes not only a biological or adopted child, but also a "foster child, a stepchild, a legal ward, or a child of a person standing 'in loco parentis.'" Employees who have no biological or legal relationship with a child may stand in loco parentis to the child and be entitled to benefits under the FMLA.

The FMLA regulations define in loco parentis as individuals with day-to-day responsibilities to care for and financially support a child. The DOL's interpretation seems to broaden that regulatory language by turning "and" into "or." In its letter, the DOL states that, to attain in loco parentis status, the employee can either be: (1) responsible for the child's day-to-day care; or (2) financially responsible for the child. Further, the DOL states that, to prove in loco parentis status, an employee need only provide his or her employer with a simple statement "asserting the requisite familial relationship." In other words, an employee need only state that he or she is responsible for caring for the child or is financially responsible for the child to attain in loco parentis status and therefore become eligible to take a leave of absence under the FMLA.

The DOL's analysis could affect many employees from grandparents to stepparents and other relatives and guardians. Most notably, the DOL's opinion is groundbreaking to the extent that, for the first time, it expressly mentions same-sex partners as qualifying for benefits under the FMLA. According to the DOL, "an employee who will share equally...

To continue reading