The DOL Clarifies that Non-Traditional Parents Have FMLA Rights, Too
The Family and Medical Leave Act (FMLA) permits otherwise qualifying employees who stand “in loco parentis” to a child to take FMLA-protected leave for the birth or placement of a child, to bond with a newborn or newly placed child, or to care for a child with a serious health condition. But, employers have wrestled for years with the issue of how the FMLA applies to employees who request leave for the birth or care of a child on the grounds that they stand “in loco parentis” to the child when there is no legal or biological parent-child relationship present. So what does “in loco parentis” mean?
Well, the U.S. Department of Labor Wage and Hour Division (DOL) has finally issued a formal interpretation opinion letter that attempts to clarify the definition of “in loco parentis.” Specifically, the DOL has stated that “in loco parentis” includes individuals who care for a child by providing either day-to-day care or financial support for a child, regardless of the legal or biological relationship to the child. Thus, according to the DOL, non-traditional parents like unmarried or same-sex partners who have no legal or biological relationship to the child may be afforded FMLA protections if they otherwise meet the DOL test. By comparison, the DOL clarifies that an individual who cares for a child while the child’s parents are on vacation does not stand “in loco parentis” to the child. The DOL further notes that there is no limitation on the number of parents a child may have under the FMLA, and the fact that a child has a biological parent in the home or both a biological mother and father does not prevent an individual from standing “in loco parentis” to a child for purposes of FMLA leave. The DOL states that an employee needs to provide only a “simple statement asserting that the requisite family relationship exists” in these situations.
For assistance in reviewing and revising FMLA-leave policies and practices to ensure that they are consistent with this interpretation, please contact a member of the Troutman Sanders LLP Labor & Employment Practice Group. The DOL’s June 22, 2010 interpretation letter can be accessed and read in its entirety here.