FMLA Leave May Be Taken by Employees Serving as Parents, Even If Not the Biological Parents or Legal Guardians

Posted by Constance A. Waters, Esq. (General Counsel)
This week the U.S. Department of Labor (“DOL”) issued an Administrator’s Interpretation of the definition of “son or daughter” under the Family and Medical Leave Act (“FMLA”).
The interpretation will permit individuals who serve in the role of a parent to take leave upon the birth or adoption of a son or daughter or to care for a son or daughter with a serious health condition, even if the individual is not the child’s biological parent or legal guardian.
This interpretation, announced in a June 22 DOL press release, will allow gay and lesbian parents, as well as grandparents or other relatives, who do not have a legal or biological parent-child relationship with the child to take covered leave.
The FMLA entitles an eligible employee to take 12 weeks of unpaid job protected leave because of:

  • The birth of a son or daughter and in order to care for the son or daughter;
  • The placement of a son or daughter with the employee for adoption or foster care; and
  • The need to care for a son or daughter with a serious health condition.

A “son or daughter” is defined to include a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in locos parentis, who is under 18 years of age or who is 18 years of age but incapable of self-care because of a mental or physical disability.
The Department of Labor interpreted the term “a person standing in locos parentis,” to include those individuals who either provide day-to-day care or financial support of the child. Previously, “a person standing in locos parentis” included only those individuals who provided both day-to-day care and financial support of the child.
Accordingly, an employee who provides day-to-day care for his or her unmarried partner’s child (with whom there is no legal or biological relationship) but does not financially support the child, could stand in loco parentis to the child and be entitled to FMLA leave to care for the child if the child had a serious health condition. The same principles apply to leave for the birth of a child and to bond with a child during the first 12 months following birth or placement.
The determination of whether an employee stands in loco parentis to a child will depend on the particular facts. If an employer has questions about whether an employee’s relationship to a child is covered under the FMLA, the employer may require the employee to provide reasonable documentation or statement of the family relationship.
However, the documentation or statement need not be extensive. According to the DOL, “[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.”
I welcome your questions about this new FMLA interpretation and any insights and perspectives you may have in the comment section below or via

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