FMLA And 'In Loco Parentis'

Question: One of our employees has requested FMLA leave to care for a child with a serious health condition that he is not the biological father of, but whom he has taken an active role in raising. All other requirements for eligibility for FMLA leave have been met but because this employee is not the child's biological parent and there is no legal parent-child relationship between him and the child (he has not legally adopted the child, though he has been raising him) we are uncertain whether the law requires us to grant him the requested FMLA leave. Does it?

Answer: Yes, you should grant this employee's request for FMLA leave. The FMLA leave provisions extend not only a child's biological or adoptive parent, but also to "a person standing in loco parentis" to a child. 29 U.S.C.A. § 2611(12). The statute's term "in loco parentis" refers to someone who has no legal relationship to the child but assumes and fulfills parental obligations. A person that discharges the day-to-day responsibilities of a parent to a child may be entitled to leave to care for that child under the FMLA.

Courts have understood that intent to assume the parental role is the key to establishing whether a relationship qualifies as in loco parentis. Courts infer the existence of this intent by examining the parties' conduct. Factors courts will consider include:

the child's age; the child's dependency on the person claiming to be standing in loco parentis; level of financial support; and the extent to which duties commonly associated with parenthood are exercised. See Dillon v. Maryland-National Capital Park and Planning Comm'n, 382 F. Supp. 2d 777, 787 (D. Md. 2005).

According to FMLA regulations, in loco parentis includes "those with day-to-day responsibilities to care for and financially support a child." The Department of Labor clarified that the regulations do not require an individual to provide both day-to-day responsibilities and financial support. 29 C.F.R. § 825.122(c)(3). Simply providing for the child's day-to-day needs can be sufficient to qualify someone as standing in loco parentis. Department of Labor, Wage & Hour Division, Administrator's Interpretation No. 2010-3 (June 22, 2010).

The DOL additionally explained that the fact that a child with a biological parent in the home does not prevent another...

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