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New DOL Guidance Expands the Definition of Child Under the FMLA

July 9, 2010

Recently, the U.S. Department of Labor (DOL) issued new guidance interpreting the definition of “son or daughter” under the Family and Medical Leave Act (FMLA). While the Guidance does not amend the FMLA or its regulations, it does clarify who may be considered a person standing “in loco parentis,” and, subsequently, eligible for FMLA leave to bond with a newborn or newly placed adopted or foster child, or to care for a child with a serious health condition.

The FMLA provides an eligible employee with up to 12 weeks of unpaid leave for various reasons, including 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 law defines a “son or daughter” as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis” who is either under 18 years of age or 18 years of age or older and incapable of self-care due to a mental or physical disability.

In the recently-issued Guidance, the DOL clarifies that “a person standing in loco parentis” is a person who has put him/herself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to legal adoption. Such individual has (or, in the case of a newborn or newly placed child, will have) the day-to-day responsibilities to care for a child or provides financial support to such child, although not necessarily both.

There is no requirement that the relationship lead to a legal guardianship relationship and an individual does not need to establish, or be able to ultimately establish, a legal relationship with the child. Under the explicit provisions of the Guidance, a person with no biological or legal relationship to a child may, nonetheless, be entitled to FMLA leave to care for a child with a serious health condition or to bond with a newborn or newly placed son or daughter where the person stands in loco parentis.

Finally, the DOL Guidance makes it abundantly clear that there is no limit under the law to the number of parents a child may have under the FMLA: an individual standing in loco parentis will still be entitled to FMLA leave even if the child has a biological parent living in the home or there is both a mother and father present in the child’s life.

While the new Guidance clarifies entitlement to FMLA leave where an extended family member (such as an aunt, uncle or grandparent) cares for a child, the greatest impact of this new interpretation will be for same-sex partners. Under this new DOL Guidance, a same-sex partner may be entitled to FMLA leave to care for the child of his/her partner with a serious health condition or to bond with the partner’s newborn or newly placed child. While New Jersey employers (and other employers with employees located in states that recognize same-sex marriages, civil unions and/or domestic partnerships) are required by state law to provide equal benefits to members of a same-sex union, federal law does not recognize such relationships and, typically, does not extend to such relationships. However, the new Guidance will permit a same-sex partner to use FMLA leave to care for his/her partner’s child. Notably, this Guidance will not entitle a same-sex partner to FMLA leave to care for the employee’s partner, just the partner’s child.

Where an employer is unsure if an employee is standing in loco parentis with a child and, thus, entitled to FMLA leave, the FMLA permits the employer to require that the employee provide reasonable documentation or a statement of the family relationship. However, the DOL has determined that a simple statement “asserting the requisite family relationship exists is all that is needed in situations such as in loco parentis where there is no biological relationship.”

In light of this new interpretive Guidance, FMLA-covered employers are advised to revise internal procedures for determining whether an employee’s situation will entitle him/her to FMLA leave in these circumstances, and to amend Employee Handbooks or written policies, if necessary, to incorporate the broad parameters of the “in loco parentis” definition.