Employers subject to the Family and Medical Leave Act (at least 50 employees) will likely see an increase—perhaps a significant increase—in employees requesting FMLA leave “for the birth or placement of a child, to care for a newborn or newly placed child, or to care for a child with a serious health condition.” Employees with no legal or biological parent-child relationship are now entitled to claim “in loco parentis” (“in the place of a parent”) status under the FMLA if they have day-to-day responsibility to care for a child.
On June 22, 2010, a Deputy Administrator with the Wage and Hour Division of the Department of Labor, Nancy J. Leppink, issued “Administrator’s Interpretation 2010-3.” DOL opinion letters and interpretations of federal law are not subject to notice and comment requirements. This interpretation clarifies the definition of “son or daughter” under Section 101(12) of the Family and Medical Leave Act (FMLA) as it applies to an employee standing “in loco parentis” to a child.
The recent interpretation is being hailed by LGBT (lesbian, gay, bisexual and transgender) groups. It allows a same-sex partner with no legal relationship to, or financial responsibility for, the other partner’s child to claim FMLA leave related to that child. The interpretation also applies to heterosexual partners, grandparents, and anyone who has day-to-day responsibility to care for a child. And it does not matter if the child has biological parents who are able to care for the child. The DOL notes that the FMLA regulations do not limit the number of “parents” that a child may have.
“In loco parentis” status under the FMLA depends on the facts. And the DOL’s interpretation is that either day-to-day care or financial support may establish the relationship where the employee intends to assume the responsibilities of a parent. But there appears to be limited opportunity—at least initially—for much investigation. According to the DOL, all that is required from an employee claiming in loco parentis status where there is no legal or biological relationship is “a simple statement asserting that the requisite family relationship exists.
Contact your Bamberger attorney for more information on your obligations under the FMLA.
Author: Michael Cork (bio)
Phone: 317.464.1594
email: mcork@bamberger.com