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On June 22, 2010, the U.S. Department of Labor (DOL) issued an Administrator's Interpretation explaining the DOL's position that any FMLA-eligible employee who has either provided day-to-day care for a child, or has financially supported that child, may take leave to care for or bond with that child if the employee intends to assume the responsibilities of a parent regardless of legal or biological relationship to the child.
The Interpretation covers leave for caring for a child with a serious health condition as well as for bonding with a newborn child or with a child placed for adoption or foster care during the year following the birth, placement, or adoption. FMLA regulations allow eligible individuals who stand in loco parentis to a child to exercise such leave rights. The DOL Interpretation and related news release express and address the agency's concern that employers are not interpreting this leave entitlement as broadly as they should to cover caregivers who are not legal or biological parents. The DOL news release announcing the Interpretation heralded the action as "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."
"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," the Interpretation states. "Neither the statute nor the regulations restrict the number of parents a child may have under the FMLA." In addition to discussing examples where a grandparent, aunt or uncle may stand in loco parentis, the Interpretation specifically addresses the status of stepparents by saying that "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."
The Interpretation provides that an employer may seek from the employee reasonable documentation or a statement of the family relationship where it is unclear whether an employee's relationship to a child is covered under the FMLA. However, it goes on to say that "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."
DOL Administrator's Interpretations are often treated as persuasive authority, but they are not binding upon courts that are called upon to interpret the related statutes and regulations. This Interpretation appears to re-write the FMLA regulation that provides that a person who stands in loco parentis to a child is someone "with day-to-day responsibilities to care for and financially support [the] child." (Emphasis added.) Accordingly, courts may or may not agree with the DOL position that either daily care responsibilities or financial support coupled with an intent to assume the responsibilities of a parent places a person in loco parentis for purposes of FMLA eligibility.
Employers who are subject to the FMLA should be mindful of the new DOL expansion of the FMLA's definition of "son or daughter" in evaluating requests for leave to bond with a child or to care for a child with a serious health condition, where the person making the request is neither a legal nor biological parent of the child.