Small Business: The Department Of Labor Expands The Meaning Of "In Loco Parentis" To Allow More Employees FMLA Leave

August 1, 2010

By Philip I. Frankel, Small-Biz Focus, July/August 2010

Under the Federal Medical Leave Act ("FMLA"), an employee may take up to 12 weeks of protected leave during any 12-month period to care for a child after birth or adoption, or to care for a child with a serious health condition. The FMLA defines "son or daughter" not only as a biological or adopted child, but also as a "foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis." The legislative intent behind the "son or daughter" definition was to reflect that often the responsibility for day-to-day child care falls on someone without a biological or legal relationship to the child.

Employers need to be aware of a recent Department of Labor ("DOL") Administrator's Interpretation ("Interpretation") clarifying the FMLA's "son and daughter" definition and in effect expanding the number of employees standing in loco parentis. In loco parentis, "in the place of a parent," is a person who assumes typical parental obligations without formal adoption. The FMLA regulations define in loco parentis as those responsible for a child's day-to-day care and financial support. The Interpretation broadens this definition by only requiring an employee with the intent to assume parental duties to show one of the two responsibilities. The courts infer intent to assume parental duties from the employee's acts and look to multiple factors such as the child's age, the child's dependence on the employee, the support provided and whether the employee performs duties commonly associated with parenthood.

The Interpretation will make FMLA leave available for more employees who lack legal or biological relationships. Same-sex couples are specifically mentioned and a non-biological parent in a same sex relationship who shares equally in raising the child can now stand in loco parentis. An unmarried employee providing day-to-day care for his or her partner's biological child, but not financial support, is covered. Similarly, the Interpretation would include an aunt assuming responsibility for raising a child after the death of the child's parents. Note, the Interpretation made clear that this broadened definition does not apply to military FMLA leave.

The FMLA's definition of parent also mentions the term "in loco parentis." The Interpretation fails to address whether the broadened definition would also apply to the "in loco parentis" found in the FMLA's definition of "parent." In other words, is this a two way street? May an employee child take leave for a person that stood "in loco parentis" to him or her under the Interpretation's broadened definition? This is unclear at this time.

Employers should note that no limit is placed on the number of parents claiming FMLA leave. It is possible for four adults to claim FMLA leave where the child's biological parents divorced and remarried. If there is a question on FMLA applicability, an employer may require the employee to provide reasonable documentation of the relationship, but the DOL only requires a simple statement asserting that the requisite relationship exists. As a result of the recent Interpretation, employers should review and amend their FMLA leave policies for compliance and also take the opportunity to assess their FMLA leave policy's treatment of same-sex families.