The U.S. Department of Labor interprets the FMLA to allow non-traditional parents, including gay and lesbian couples, to take time off to care for non-biological children.
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FMLA Update:
DOL Defines “Son or Daughter” For FMLA,
Includes Non-Traditional Parents
By Christopher W. Olmsted
When employees need to take time off to care for a son or daughter with a serious medical condition, many employers do not realize that the FMLA provides a very broad definition of “son or daughter.” A manager who has the traditional biological definition in mind may inadvertently deprive an employee of FMLA rights. A recent Department of Labor opinion letter highlights and perhaps expands this broad definition.
Leave Rights For Son Or Daughter
The FMLA entitles an eligible employee to take up to 12 workweeks of job-protected leave, in relevant part, “[b]ecause of the birth of a son or daughter of the employee and in order to care for such son or daughter,” “[b]ecause of the placement of a son or daughter with the employee for adoption or foster care,” and to care for a son or daughter with a serious health condition.
Who Is A Parent To A Son or Daughter?
The FMLA 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— (A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability.”
One Child, Many Parents
“In loco parentis” is a Latin phrase meaning one who stands in for a parent. Under the FMLA the term can encompass a number of different scenarios where there is no biological or legal relationship between the employee and a child.
The DOL opinion letter notes that Congress intended the definition to be broad. Congress “intended ‘son or daughter’ to reflect ‘the reality that many children in the United States today do not live in traditional ‘nuclear’ families with their biological father and mother. Increasingly, those who find themselves in need of workplace accommodation of their child care responsibilities are not the biological parent of the children they care for, but their adoptive, step, or foster parents, their guardians, or sometimes simply their grandparents or other relatives or adults.”
To qualify for in loco parentis status, the employee must be in a position to (1) assume parental status and (2) discharge the parental duties. Financial support of the child is not a prerequisite. The DOL notes that several different people may have this status.
Includes Unmarried Partners. “For example,” states the DOL opinion letter, “where an employee provides day-to-day care for his or her unmarried partner’s child (with whom there is no legal or biological relationship) but does not financially support the child, the employee could be considered to stand in loco parentis to the child and therefore be entitled to FMLA leave to care for the child if the child had a serious health condition.”
Includes Bonding Time. “The same principles apply to leave for the birth of a child and to bond with a child within the first 12 months following birth or placement. For instance, an employee who will share equally in the raising of a child with the child’s biological parent would be entitled to leave for the child’s birth because he or she will stand in loco parentis to the child.”
Includes Same Sex Partners. “Similarly, an employee who will share equally in the raising of an adopted child with a same sex partner, but who does not have a legal relationship with the child, would be entitled to leave to bond with the child following placement, or to care for the child if the child had a serious health condition, because the employee stands in loco parentis to the child.”
Child May Have Many “Parents.” The DOL opinion letter notes that “the fact that a child has a biological parent in the home, or has both a mother and a father, does not prevent a finding that the child is the ‘son or daughter’ of an employee who lacks a biological or legal relationship with the child for purposes of taking FMLA leave. For example, where a child’s biological parents divorce, and each parent remarries, the child will be the ‘son or daughter’ of both the biological parents and the stepparents and all four adults would have equal rights to take FMLA leave to care for the child.
Employers Can Ask Questions. Where an employer has questions about whether an employee’s relationship to a child is covered under FMLA, the employer may require the employee to provide reasonable documentation or 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.
Other Examples:
a grandparent takes in a grandchild and assumes ongoing responsibility for raising the child because the parents are incapable of providing care
an aunt assumes responsibility for raising a child after the death of the child’s parents.
an employee who cares for a child while the child’s parents are on vacation would not be considered to be in loco parentis to the child.
In a press release, the DOL has trumpeted this interpretation as a victory. “This action is a victory for many non-traditional families, including families in the lesbian-gay-bisexual-transgender community, who often in the past have been denied leave to care for their loved ones.”
Additional Information:
Press Release
More Information About DOL Opinion
Related Articles:
FMLA Leave Update: Who Decides Whether The Employee Is Sick Enough For FMLA Leave?
California Leave Update: Not All FMLA Regulations Apply In California
Download entire July 2010 Legal Update in PDF format.
This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2010 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
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