U.S. Department of Labor Clarifies When Employees Standing 'In Loco Parentis' May Take FMLA Leave to Care for a Child

On June 22, 2010, the U.S. Department of Labor (DOL) issued guidance setting forth its interpretation of when an employee, who does not have a biological or legal relationship with a child, may take leave under the Family and Medical Leave Act (FMLA) for the birth, adoption, bonding or care of that child.

In Administrator's Interpretation No. 2010-3, the DOL declared that an employee may stand "in loco parentis" to a child when the employee provides either day-to-day care or financial support, where the employee intends to assume the responsibilities of a parent with regard to the child. The DOL's interpretation, which may be considered an expansive reading of the applicable FMLA regulations, is being regarded as supportive of nontraditional families.

The FMLA provides that an eligible employee may take up to 12 workweeks of unpaid, job-protected leave in a designated 12-month period for the birth or placement of a son or daughter, to bond with a newborn or newly placed son or daughter, or to care for a son or daughter with a serious health condition.1 The FMLA further defines a "son or daughter" as "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."2

Responding to what it perceived as confusion by both employers and employees about the manner in which these definitions apply in the absence of a legal or biological parent-child relationship, the DOL noted that Congress intended the definition of a "son or child" to reflect nontraditional family relationships and to be construed in favor of providing FMLA leave to those employees who actually have day-to-day responsibility for caring for a child, even in the absence in the absence of a biological or legal relationship.3

The DOL acknowledged that its interpretation differs from the explicit language of the FMLA regulations defining "in loco parentis" as including those with day-to-day responsibilities to care for and financially support a child.4 However, the DOL noted there are no specific factors that are dispositive on the issue of whether the "in loco parentis" relationship is present and that it did not feel the FMLA required an employee to demonstrate both day-to-day care and financial support in order to stand "in loco parentis" to a child. The DOL further illustrated its interpretation...