The U.S. Department of Labor (DOL) on June 22, 2010, clarified the definition of “son and daughter” under the Family and Medical Leave Act (FMLA) to ensure that an employee who assumes the role of caring for a child receives parental rights to family leave regardless of the legal or biological relationship. The DOL interpretation applies to nontraditional families, including unmarried partners and families in the lesbian-gay community.   The DOL explains that its intent is to assist employees and employers in understanding “how the FMLA applies when there is no legal or biological parent-child relationship.”

The interpretation provides that “employees who have no biological or legal relationship with a child may nonetheless stand in loco parentis to the child and be entitled to FMLA leave.” In general, in loco parentisstatus arises when a person assumes the obligations of a parental relationship without going through the formalities of a legal adoption.  The key is the employee’s intent to assume the status of a parent, which can be inferred from the employee’s actions with regard to the child.  The interpretation also clarifies that the regulation does 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. 

The FMLA has long been interpreted as granting leave to employees who are in loco parentisto a partner’s child who suffers from a serious health condition.  However the interpretation provides some new guidance :

1. It specifically says employees may take leave when a same-sex partner gives birth or adopts a child.
2. It entitles non-biological gay and lesbian parents to the same bonding period as other parents of a newborn or newly adopted child.

Where an employer has questions about whether an employee’s relationship to a child is covered under FMLA, the employer may require the employee to provide reasonable documentation or statement of the family relationship.  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.

To read more information about FMLA and the administrator interpretation, visit www.dol.gov/whd or call impactHR at 410-480-7145.

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