DOL Clarifies That Employees May Take FMLA Leave to Care for a Child Even Absent a Biological or Legal Relationship

June 29, 2010

On June 22, 2010, the Department of Labor clarified that the FMLA applies to employees who take leave to care for a child, even if the employee is not the biological or legal parent of the child. The relevant provisions of the FMLA allow an eligible employee to take up to 12 weeks of protected leave in a 12-month period
“[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,” or to care for a daughter or son who has a serious health condition. 29 U.S.C. § 2612(a)(1)(A)-(C). As the DOL interpretation makes clear, a employee may be entitled to FMLA protections when, for example, she takes leave upon her same-sex partner’s birth of their child, or to care for a grandchild, niece, or friend’s child with a serious health condition whom she parents.

The FMLA Broadly Defines Who Is an Employee’s Son or Daughter

For purposes of the FMLA, a son or daughter is “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 old or who is 18 or older and incapable of self-care. 29 U.S.C. §2611(12). “[T]hose with day-to-day responsibilities to care for and financially support a child” are deemed to stand in loco parentis to the child — neither a legal nor a biological relationship between the employee and child is required. 29 C.F.R. §825.122(c)(3). According to the DOL interpretation, “the regulations do not require an employee who intends to assume the responsibilities of a parent to establish that he or she provides both day-to-day care and financial support in order to be found to stand in loco parentis to a child.”

As the DOL states in its guidance, in loco parentis “embodies the two ideas of assuming the parental status and discharging the parental duties.” The intent of the person claiming to be in loco parentis is key to the determination, and may be inferred from the employee’s actions. The determination is context-specific, and factors that may be relevant “include the age of the child; the degree to which the child is dependent on the person claiming to be standing in loco parentis; the amount of support, if any, provided; and the extent to which duties commonly associated with parenthood are exercised.” Importantly, as defined under the FMLA, a son or daughter may have more than two parents who are eligible for leave. Neither the presence of a biological parent in the home, or the fact that a child has two legal parents, “prevent[s] 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.”

The June 22 DOL interpretation and the DOL’s corresponding news release provide several examples of eligible employees who stand in loco parentis to a child and are thus entitled to FMLA leave. For example, an employee who intends to parent a child with his or her same-sex partner is entitled to FMLA leave upon that child’s birth or adoption. This is true even if the employee is not himself or herself legally adopting the child. And an employee caring for a young nephew or grandchild with a serious health condition when the child’s single parent is called to active military duty may likewise exercise his or her right to FMLA leave.

Requesting Documentation When an Employee’s Parental Relationship to a Child Is in Doubt

If an employer is unsure whether an employee’s relationship with a child is such that the employee is entitled to FMLA leave, the employer may require that the employee provide “reasonable documentation or [a] statement of the family relationship.” 29 C.F.R. § 825.122(j). According to the DOL interpretation, “[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.”

For more information on this alert or any other labor and employment issues, please contact any of the lawyers listed below:

John Adkins,, 617.951.8551
Jenny Cooper,, 617.951.8473
Louis Rodriques, Co-chair, Labor and Employment Group,, 617.951.8340

Los Angeles/Orange County
Jacqueline Aguilera,, 213.229.8439
Debra Fischer,, 213.680.6418

San Francisco
James Severson,, 415.393.2242

New York
Douglas Schwarz,, 212.705.7437

Mie Fujimoto,, 81.3.6721.3138

This article was originally published by Bingham McCutchen LLP.