DOL Clarifies Definition of "Son or Daughter" in FMLA
In an Administrative Interpretation issued yesterday, the Department of Labor clarified the definition of "son and daughter" as it applies to an employee standing "in loco parentis" to a child under the Family and Medical Act for purposes of non-military leave. The Interpretation was intended to ensure an employee who assumes the role of caring for a child receives parental rights to family leave regardless of the legal or biological relationship. With the Interpretation, the DOL made clear the FMLA, which allows employees to take leave for the birth or adoption of a child, extends to the various parenting relationships that exist in today's world.
The definition of "son or daughter" includes a "biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis." In loco parentis includes those with day-to-day responsibilities to care for and financially support a child. Employees who have no legal or biological relationship with a child may nonetheless stand in loco parentis, and thus be entitled to FMLA leave.
The Interpretation clarifies 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. The Interpretation lists several examples, including an employee who provides day-to-day care but does not financially support his or her unmarried partner's child with whom there is no legal or biological relationship. It also lists, as an example, an employee who will share equally in the raising of an adopted child with a same-sex partner, but who does not have a legal relationship with the child.
In a press release, the DOL declared the Interpretation a "victory for many non-traditional families." Hilda Solis, the United States Secretary of Labor, stated "[The DOL's] action today sends a clear message to workers and employers alike: All families, including LGBT families, are protected by the FMLA."
The Interpretation is, however, careful to warn that a determination of in loco parentis status is based on multiple factors, and that there is no specific set of factors that, if present, will be considered dispositive. Thus, it is important for employers to fully consider all circumstances surrounding a particular employee's request for FMLA leave based on in loco parentis status before determining whether to grant or deny FMLA leave.
