On June 22, 2010, the U.S. Department of Labor ("DOL") issued an Administrator's Interpretation publication that broadly defined who may be in loco parentis to a "son or daughter" for purposes of the FMLA. The DOL's interpretation may have an impact on how schools administer Family and Medical Leave ("FML").

The DOL clarified the definition of “son or daughter” under FMLA as it applies to an employee taking FMLA-protected leave for the birth or placement of a child, to care for a newborn or newly placed child, or to care for a child with a serious health condition. The regulations define 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."

The DOL emphasized Congress's intent to define a “son or daughter” under the FMLA to reflect "the reality that many children in the United States do not live in traditional 'nuclear' families with their biological mother or father." Therefore, a broader understanding of the definition of an employee’s son or daughter was needed.

While the DOL found that there are many factors to determine if an employee is standing in loco parentis to a child, the Administrator's Interpretation now makes clear that there is no requirement for a biological or legal relationship with the child to stand in loco parentis. For example, FML can be extended to domestic partners, grandparents, or other family members that provide either day-to-day, on-going care or financial support for a child. As an example, the DOL stated, “an employee who will share equally in the raising of a child with the child’s biological parent would be entitled to leave for the child’s birth because he or she will stand in loco parentis to the child.” Likewise, “an employee who will share equally in the raising of an adopted child with a same sex partner, but who does not have a legal relationship with the child, would be entitled to leave to bond with the child following placement, or to care for the child if the child has a serious health condition, because the employee stands in loco parentis to the child.”

Additionally, DOL noted that there are no restrictions on the number of parents a child may have. For instance, if a child’s biological parents are divorced and remarried, all four parents (i.e., two biological and two stepparents) are entitled to FML related to the child.

It remains lawful to require the employee to provide reasonable documentation or a statement of the family relationship if the employer questions the employee’s relationship with the child. However, the DOL has found that a simple statement “asserting the requisite family relationship exists is all that is needed in situations such as in loco parentis where there is no biological relationship.”

Lesson Learned

Based upon the DOL’s Administrator's Interpretation, many school boards may need to adjust their FMLA policies to reflect a more broad definition of in loco parentis for leave related to a child. Even if a school board’s policy does not require revision, we recommend that school employees be trained to recognize what qualifies as an employee’s "son or daughter" under the FMLA on a case-by-case basis, looking to the specific day-to-day responsibilities of the person requesting leave.

Should you have any questions concerning the aforementioned Administrator's Interpretation of the FMLA, or any other questions regarding the administration of FML, please contact a member of the firm’s Education Law or Labor & Employment Departments.