Update: Clarification of the definition of “son or daughter” under the FMLA

As you know, the FMLA applies to all public and private elementary and secondary schools, all public agencies, and all companies with 50 or more employees.  One requirement of the FMLA is that eligible employees may take up to 12 work weeks of job-protected leave (1) because of the birth of a son or daughter or in order to care for such child, (2) because of the placement of a son or daughter for adoption or foster care, or (3) to care for a son or daughter with a serious health condition.  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.”  29 U.S.C. § 2611(12); 29 C.F.R. §§ 825.122(c) & 825.800 (emphasis added).  A recent Interpretation of the U.S. Department of Labor expands the definition of the parent-child relationship.

Under the interpretation, “in loco parentis” status under the FMLA is to be read broadly to include anyone who has day-to-day responsibilities of caring for a child, such as the unmarried or same-sex partner of the biological parent.  Factors that should be considered in determining in loco parentis status 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 financial support provided and the extent to which duties commonly associated with parenthood are exercised by the person.  These factors must be weighed, and not all of them must be present to find that a person is acting in loco parentis.  If it is found that a person acts in loco parentis to a child, they will be eligible to request FMLA leave in connection with that child.  Under this interpretation, for example, FMLA leave may be available to unmarried or same-sex partners where there is no biological or adoptive relationship with the child, as well as situations where a child is primarily raised by a grandparent.  The clarification warns that the fact that a child has a biological parent at home or two biological parents does not prevent a third person, such as a grandparent, from standing in loco parentis, and that the FMLA does not limit the amount of “parents” that a child can have.  For instance, it is possible that a family consisting of a husband, wife, and their biological child could live with one of the child’s grandparents.  In this hypothetical, assume that, due to the illness or work injury of both of the parents, the grandparent is the day-to-day care giver and/or primary financial support of the child.  In this situation, the grandparent should be granted FMLA leave if the child falls ill.  While this situation is not common, it is certainly possible.  Thus, it is important to determine the right to FMLA leave on a case-by-case basis.       

This new interpretation may have an impact as you will have to broaden the definition of “in loco parentis” in administration of FMLA leave requests. Further, while there are aspects of the FMLA that can be determined objectively (Did the employee work 1250 hours?  Was a child born, adopted or placed?) the new inquiry regarding “in loco parentis” status  will require your H.R. department to make an independent determination based on the various factors identified above.  The interpretation will apply prospectively, so there is no need to revisit FMLA requests submitted previously, but you should be sure that the members of your staff who are responsible for receiving and reviewing FMLA requests are made aware of this new interpretation so that requests which are valid under the new interpretation are not turned away.

If you have any questions regarding the application of this new development in the FMLA, please feel free to Alfred Maiello at 412.242.4400 or acm@mbm-law.net.