Extends Leave To Persons With No Biological Or Legal Relationship To Child

The U.S. Department of Labor (DOL) recently issued an “Administrator’s Interpretation” on the definition of “son or daughter” under the Family and Medical Leave Act (FMLA). The federal law allows workers to take up to 12 weeks of unpaid leave during any 12-month period for a number of reasons, including for the adoption or the birth of a child or to care for a son or daughter with a “serious health condition.” The interpretation, issued by Nancy Leppink, Deputy Administrator of the DOL’s Wage and Hour Division, would broaden the definition of persons who stand in loco parentis so as to include employees in same-sex or other non-traditional relationships (without regard to their legal or biological relationship with the child).

The FMLA defines “son or daughter” to include a biological or adopted child, and a “foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.” The FMLA regulations define “in loco parentis” to include those with day-to-day responsibilities to care for and financially support a child.

According to the new interpretation, employees with no biological or legal relationship with a child may stand in loco parentis and be eligible for FMLA-protected leave. Significantly, the interpretation construed the regulations such that an employee who intends to assume the responsibilities of a parent need not provide both day-to-day care and financial support.

Thus, according to the interpretation, an employee in a same-sex relationship will now qualify for leave to care for his or her partner’s child, even if the employee has not legally adopted the child. In addition, an employee who will share child-raising responsibilities with the child’s biological or adopted parent would be entitled to leave for the child’s birth or to bond with the child following placement.

Further, the interpretation finds that whether an employee stands in loco parentis to a child is not based upon whether that child has both biological parents but depends on several factors. Courts have considered the child’s age, the degree to which the child is dependent on the person, and the extent to which the individual exercises duties associated with parenthood in determining in loco parentis status.

According to Alfred Robinson, a shareholder in Ogletree Deakins’ Washington, D.C. office who previously served as the acting Administrator of the DOL’s Wage and Hour Division: “While the DOL called this Admini-strator’s interpretation a `clarification,’ it actually is a departure from the FMLA regulatory requirements that a person have day-to-day care responsibilities for and financially support a child in order to stand in loco parentis. This interpretation is intended to reflect the changing dynamics of family structures but, simultaneously, creates compliance challenges for employers. Employers should review their FMLA policies and other documents to ensure that they do not conflict with this new interpretation.”

Robinson suggested, “Employers may want to review their practices in examining the family relationship responses on medical certification forms used when an employee’s family member has a `serious health condition’. The new interpretation states that a `simple statement’ on a family relationship is all that is required to establish in loco parentis. The existing regulations permit employers to require reasonable documentation or a family relationship statement. Thus, where no biological or legal relationship is disclosed on the certification form, employers may want to identify other documentation it may request to confirm that a person stands in loco parentis to a child.”

Note: This article was published in the July/August 2010 issue of The Employment Law Authority.

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