Labor Department Clarifies Definition of "Son or Daughter" in FMLA

August 19, 2010

On June 22, 2010, the U.S. Department of Labor's (DOL) Wage and Hour Division, through an Administrative Interpretation (AI), clarified the definition of "son or daughter" as it relates to the Family and Medical Leave Act of 1993 (FMLA).  The AI clarifies the rights of certain caregivers in a parental role, such as relatives and same-sex partners, giving them access to  protected leave to care for or bond with a child as outlined in the FMLA.

As it relates to children, the FMLA generally requires that companies with 50 or more employees entitle workers up to 12 workweeks of leave for the birth or placement of a son or daughter, to bond with a newborn or newly placed son or daughter, or to care for a son or daughter with a serious health condition.  The definition of "son or daughter" under the FMLA 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."  While it was presumably the intent of lawmakers for the term "in loco parentis" to include children who were not in traditional nuclear households (i.e., biological mother and father), the law left many unanswered questions for non-traditional families with children. According to Administrator's Interpretation No. 2010-3, the FMLA regulations "do not require an employee who intends to assume the responsibilities of a parent to establish that he or she provided both day-to-day care and financial support in order to be found to stand in loco parentis to a child."  While whether an employee stands in loco parentis to a child will depend on particular facts, the AI lists several examples of possible cases of in loco parentis, including: 
  • a grandparent who is assuming ongoing responsibility for raising a child because the parents are incapable of providing care;
  • an aunt who assumes responsibility for raising a child after the death of a child's parents;
  • an employee who provided day-to-day care for his or her unmarried partner's child (with whom there is no biological relationship) but does not financially support the child;
  • 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; and
  • divorced and remarried parents where both the biological parents and stepparents will all four have equal rights to take FMLA leave to care for the child.
Another example is shared in a statement by labor secretary Hilda L. Solis, where an uncle who is caring for a young niece and nephew when their single parent has been called to active military duty may exercise his right to family leave. The AI specifically mentions that an employee who cares for a child while the child's parents are on a vacation would not be considered to be in loco parentis to the child. For more information on the FMLA, visit the Wage and Hour Division's FMLA web page or AGC's Labor and HR Topical Resources web page.
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