DOL's Clarification of "Son and Daughter" FMLA Definition Broadens Category of Employees Who May Take Leave

Two women with childThe Department of Labor’s Wage and Hour Division (WHD) has issued an administrative interpretation providing guidance on who may take time off under the Family and Medical Leave Act (FMLA) to care for a sick, newly born or adopted child when that person has no legal or biological attachment to that child. The FMLA typically permits employees to take up to 12 weeks of unpaid leave during any 12-month period for the aforementioned reasons, among others. The regulations extend these FMLA rights to those who stand in loco parentis – “in the situation of a lawful parent by assuming the obligations incident to the parental relation.” The administrator interpretation issued by Nancy J. Leppink, deputy administrator of the WHD, clarifies that an individual falling into this category is not required to establish that he or she provides both day-to-day care and financial support to the child, thus covering those who fall outside of the “traditional” parent category.

The interpretation explains that such individuals include a grandparent who takes in a grandchild and assumes ongoing responsibility for raising the child because the parents are incapable of providing care; an aunt or uncle who assumes responsibility for raising a child after the death of the child’s parents; a same-sex spouse or partner who shares equally in the raising of a child with the child’s biological or adoptive parent; and a step-parent to the spouse’s biological or adoptive child.

If an employer has questions about whether the individual’s relationship with the child qualifies him or her for FMLA leave, it may require the employee to provide “reasonable documentation” or a statement of the family relationship. “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.”

In a statement, Labor Secretary Hilda Solis commented:

No one who steps in to parent a child when that child's biological parents are absent or incapacitated should be denied leave by an employer because he or she is not the legal guardian. No one who intends to raise a child should be denied the opportunity to be present when that child is born simply because the state or an employer fails to recognize his or her relationship with the biological parent. These are just a few of many possible scenarios. The Labor Department's action today sends a clear message to workers and employers alike: All families, including LGBT families, are protected by the FMLA.

Photo credit:  Stratesigns, Inc.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.