On June 22, 2010, the Department of Labor issued an Opinion Letter, interpreting the definition of “son or daughter” under the Family Medical Leave Act (“FMLA”) to include not only biological or adopted children, but also foster children, legal wards, or a child of any person standing in loco parentis. As explained below, employers must now grant leave to any employee who “puts himself in the situation of a lawful parent by assuming the obligations incident to the parental relation,” even if the employee does not have a biological or legal relationship with the child.
LEAVE UNDER THE FAMILY MEDICAL LEAVE ACT
In addition to leave related to military service, the FMLA requires covered employers to provide up to 12 weeks of unpaid, job-protected leave to eligible employees for the following reasons:
- For incapacity due to pregnancy, prenatal medical care or child birth;
- To care for the employee’s child after birth, or placement for adoption or foster care;
- To care for the employee’s spouse, son or daughter, or parent, who has a serious health condition; or
- For a serious health condition that makes the employee unable to perform the employee’s job.
In response to numerous requests for guidance on who, exactly, is entitled to take leave for the birth and care of a child, the Department of Labor issued the June 22, 2010 Opinion Letter. As explained below, the Department of Labor’s opinion greatly increases the number of employees who are eligible to take leave under the statute.
DEPARTMENT OF LABOR’S DEFINITION OF “SON OR DAUGHTER”
In its Opinion Letter, the Department of Labor recognizes that many children do not live in traditional, nuclear families. The Department of Labor concludes that the FMLA was intended to protect any employee who “actually has day-to-day responsibility for caring for a child,” even if the employee does not have a biological relationship with the child. In other words, according to the Department of Labor, the FMLA covers any employee who stands in loco parentis to the child.
Whether an employee stands in loco parentis depends on whether the employee assumed the duties of a parent. The Department cites a variety of factors relevant to making this determination, including the age of the child, the degree to which the child is dependent upon the employee, the amount of support provided by the employee, and the extent to which the employee exercises the duties commonly associated with parenthood.
In its Opinion Letter, the Department of Labor concludes that employees who have no biological or legal relationship to a child may still stand in loco parentis to the child and may be entitled to take FMLA leave. As a result, same-sex partners, aunts, uncles, grandparents, and other individuals may be entitled to take FMLA leave for the birth or care of the child.
MORE THAN ONE PERSON MAY BE ENTITLED TO LEAVE
The Department of Labor also cautions that, just because a child has a biological parent in the home, or has both a mother and a father, does not prevent a finding that an employee with no biological or legal relationship with the child stands in loco parentis to the child. The Department of Labor states, “[n]either the statute nor the regulations restrict the number of parents a child may have under the FMLA.”
As a result, where a child has both a biological parent, a step-parent, and a person who stands in loco parentis, all three individuals would have equal rights to take leave under the FMLA. As a result, an employer may not deny leave merely because there is another parent who could also take care of the child. While an employer can require employees to provide a statement or documentation of the family relationship, the Department of Labor cautions employers that “a simple statement” affirming that relationship is all that the employee must provide.
WHAT DOES THIS MEAN FOR EMPLOYERS?
The Department of Labor’s Opinion Letter expands the number of people who may take leave for the birth or care of a child. The Opinion Letter makes it clear that aunts, uncles, grandparents, same-sex partners, and other individuals are entitled to take leave under the FMLA, provided they are functioning like a parent to the child. Employers should be careful when denying leave to an employee on the grounds that he or she is not a biological or legal parent of a child. As long as the employee stands in loco parentis to the child, he or she is protected by the FMLA and is entitled to take leave.