The U.S. Department of Labor (DOL) has recently issued guidance clarifying that employees who are neither the biological nor legal parent or guardian of a child may nevertheless be entitled to leave under the Family and Medical Leave Act (FMLA) for the birth, adoption, or care of that child if the employee’s relationship with the child meets certain criteria.

The FMLA provides that an eligible employee may take up to 12 workweeks of unpaid, job-protected leave for the birth, adoption, or foster-care placement of a son or daughter, to bond with a newborn or newly placed son or daughter, or to care for a son or daughter with a serious health condition. The FMLA further 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.” In a recent Administrator’s Interpretation, the DOL clarified the meaning and scope of the phrase “a person standing in loco parentis” to a child. After reviewing some of the legislative history surrounding this terminology and the commonly understood legal definitions of the phrase, the DOL concluded that an employee may “stand in loco parentis” under FMLA regulations where the employee has assumed (or intends to assume) the responsibilities of a parent by either providing day-to-day care or financial support of the child. Essentially, the DOL’s interpretation clarifies that child-related leave under the FMLA may be available to eligible employees who, while not the biological or legal parent or guardian, have nevertheless assumed parental roles in non-traditional families.

The Administrator’s Interpretation provided some examples. For instance, a grandparent, aunt or uncle who takes in a child because of the death or incapacity of the parents may stand “in loco parentis” to the child for FMLA purposes. Similarly, an employee who will share in the parenting of a child with the employee’s same sex partner may stand “in loco parentis” even though the employee has no legal relationship to the child. The DOL also made it clear that each situation will depend on the particular facts. Where the employer is uncertain as to whether the employee’s relationship with the child is covered by the FMLA, the employer may require the employee to submit a statement or documentation of the relationship.

This recent guidance from the DOL should be shared with all employees who have responsibility for FMLA compliance and may require modification of FMLA provisions in employee handbooks.