The U.S. Department of Labor has issued guidance for employers regarding who is a “son or daughter” for purposes of Family and Medical Leave Act (FMLA) absences. The FMLA defines 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.” Administrator’s Interpretation No. 2010-3 (Interpretation), issued on June 22, 2010, clarifies the definition of “son or daughter” as it applies to an employee standing “in loco parentis” to a child.  

Defining an In Loco Parentis Relationship

The Interpretation states that “either day-to-day care or financial support may establish an in loco parentis relationship where the employee intends to assume the responsibilities of a parent with regard to a child[.]” An employee who can establish an in loco parentis relationship with a child may be eligible for FMLA leave for the birth or placement for adoption or foster care 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 Interpretation provides several specific situations in which an employee may have an in loco parentis relationship even though there is no biological or legal relationship with the child, such as guardianship or adoption:  

  • The employee provides day-to-day care for the child of an unmarried partner;  
  • The employee shares equally in the raising of a child adopted by a same-sex partner;  
  • The employee is a stepparent and provides day-to-day care or financial support for the child;  
  • The employee cares for a grandchild or other relative and assumes ongoing responsibility for that grandchild or other relative because the child’s parents are incapable of providing care or are deceased.  

What This Means for Employers

Clearly, the Interpretation broadly defines employees who may be eligible for FMLA leave. Employers should review eligibility policies and FMLA leave decisions to take into account employees who stand in loco parentis to a child. Keep in mind that same-sex and non-traditional parenting relationships may fall under FMLA eligibility as well. Employers should also be mindful that a child may have more than two parents for purposes of FMLA leave if, for example, the child has divorced parents who each remarry.

The Interpretation notes that an employer may require that an employee provide documentation or a statement of the family relationship that entitles that employee to FMLA leave. Note that the employee need only submit a statement asserting that such an in loco parentis relationship exists.