Who Is a “Son or Daughter” Under the FMLA?

The U.S. Department of Labor issued a clarification today of  the definition of “son or daughter” under the federal Family Medical Leave Act (FMLA).  We already know that employees can use their FMLA-protected leave to care for a newborn or newly placed child, or to care for a child with a serious health condition.  The issue is whether an employee can use FMLA protected leave for the placement of a child or to care for a child for whom they have no legal and/or biological relationship and for whom they provide no financial support.  Think stepparents, grandparents, aunts and uncles, or any adult who has assumed the responsibilities of a parent for a child.

The Department of Labor says yes: employees get FMLA-protected leave to care for a child for whom the employee has assumed parental responsibilities:

For example, where an employee provides day-to-day care for his or her unmarried partner’s child (with whom there is no legal or biological relationship) but does not financially support the child, the employee could be considered to stand in loco parentis to the child and therefore be entitled to FMLA leave to care for the child if the child had a serious health condition. The same principles apply to leave for the birth of a child and to bond with a child within the first 12 months following birth or placement. For instance, an employee who will share equally in the raising of a child with the child’s biological parent would be entitled to leave for the child’s birth because he or she will stand in loco parentis to the child. Similarly, 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, would be entitled to leave to bond with the child following placement, or to care for the child if the child had a serious health condition, because the employee stands in loco parentis to the child.

Children can have more than two parents for the purposes of this definition.  For example, each parent and step parent could be entitled to FMLA to care for a child, if the facts show that each has assumed parental responsibilities.  

This clarification is great for employees who don’t have traditional nuclear families.  While it may seem to make things more complicated for employers who are concerned with FMLA abuse, it also streamlines the inquiry, because  “[a] simple statement asserting that the requisite family relationship exists is all that is needed in situations such as in loco parentis where there is no legal or biological relationship.”  Administrator’s Interpretation No. 2010-3.