On June 22, 2010, the U.S. Department of Labor’s Wage and Hour Division issued an Interpretation Letter (pdf) clarifying the definition of “son or daughter” under section 101(2) of the Family Medical Leave Act (FMLA). Under the interpretation, an employee who provides either day-to-day care or financial support to a child and intends to assume the responsibilities of a parent with regard to the child, may be entitled to FMLA leave to care for the child.
This new interpretation is heralded as a “victory” for nontraditional families, and for good reason. Although the analysis with respect to whether an employee stands in loco parentis (in the place of a parent) to a child, thereby qualifying for FMLA leave, will depend on the particular facts of every case, the new interpretation clearly expands the types of relationships that will qualify for FMLA leave. In fact, the DOL interpretation explains that employees who have no biological or legal relationship with a child may stand in loco parentis to the child and still be entitled to FMLA leave.
According to the DOL, the following relationships qualify for FMLA leave to care for a child with a serious health condition, and/or for birth of a child and to bond with a child within the first 12 months of birth or placement:
- An employee who provides day-to-day care for his or her unmarried partner’s child (with whom there is no legal or biological relationship and to whom the employee provides no financial support);
- An employee/step-parent who provides day-to-day care for his or her wife/husband’s child (with whom there is no legal or biological relationship and to whom the employee provides no financial support);
- An employee who will or does share equally in the raising of a child with the child’s biological parent;
- An employee who will or does share equally in raising an adopted child with a same sex partner but who does not have a legal relationship with the child;
- An employee who takes in a grandchild and assumes ongoing responsibility for raising the child because the parents are incapable of providing care; and
- An employee who assumes responsibilities for raising his or her niece or nephew after the death of the child’s parents.
If an employer is uncertain as to whether the employee’s relationship to a child is covered under the FMLA, the employer may require “a reasonable documentation or statement of the relationship.” But at all times employers must approach these issues with the understanding that they are fact sensitive matters that must be addressed on an individual basis.