Nancy, the company's marketing director, asks to speak with Mary, the head of HR. When Mary invites her into her office, Nancy sits down and submits her completed "Request for Leave" under the Family and Medical Leave Act (FMLA). On the form, she has indicated that she is requesting leave to care for a child who has a serious health condition. Nancy has been working at the company for 12 years, and Mary is almost positive that she doesn't have any children. However, Mary vaguely recalls hearing from a colleague at the company's holiday party that Nancy is in a same-sex relationship and lives with her partner and her partner's four-year-old child. If that's the case, and Nancy otherwise qualifies for FMLA leave, is she entitled to take FMLA leave to care for the child?

Well-versed in the FMLA, Mary knows that it allows an employee to take leave to care for her child with a serious medical condition. She also knows that New York provides certain rights and benefits for domestic partners and prohibits discrimination on the basis of sexual orientation. Nevertheless, Mary isn't entirely clear about whether she should grant Nancy's request. To complicate matters, she is concerned about asking Nancy questions about her personal life and her relationship to this child, who she doesn't believe is biologically or legally hers.

Should Mary grant Nancy's request for FMLA leave? Maybe.

Interpreting ‘in loco parentis' status under FMLA

As you know, the FMLA entitles eligible employees to take up to 12 weeks of job-protected leave during any 12-month period to, among other things, care for a child with a serious health condition. The FMLA's definition of "son or daughter" includes "a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis." The phrase "in loco parentis" means "in the place of a parent" and typically refers to an individual who has assumed the obligations incidental to a parental relationship without formally adopting the child. In loco parentis status generally has been construed to apply only to people who have some sort of legal guardianship of the child. That is no longer true for purposes of the FMLA.

The U.S. Department of Labor (DOL) recently issued an "Administrator's Interpretation" clarifying the meaning of "son or daughter" as it applies to an employee who is standing in loco parentis to a child who isn't legally or biologically related to her. In doing so, the DOL recognizes that families aren't necessarily defined by bloodlines and legal orders, and employees who are part of same-sex or nontraditional family relationships may also have rights under the FMLA. In its interpretation, the DOL states that Congress intended the definition of "son or daughter" to reflect the reality that many children do not live in traditional "nuclear" families with a biological mother and father, and the adult who actually has the day-to-day responsibility of caring for a child may not have a biological or legal relationship to the child — whether that person is a grandparent, a stepparent, or another adult.

In its interpretation, the DOL has clarified that when an employee intends to assume the responsibilities of a parent, she need only show that she provides day-to-day responsibility or financial support for a child. The FMLA doesn't dictate how long an employee must care for a child to be considered in loco parentis, and in its interpretation, the DOL has stated that such status may be granted immediately. With respect to same-sex relationships, the department has explicitly stated its position that an employee may be in loco parentis to a child as soon as the child is born to or adopted by a same-sex partner.

The DOL also has taken the position that under the FMLA there is no restriction on the number of parents a child may have. For example, if a couple divorces and each parent remarries, the child may have four parents under the regulations (both biological parents and both the stepmother and stepfather, assuming that each new stepparent can establish that he or she provides day-to-day responsibility for or financial support to the child). Each adult may have equal FMLA rights to take leave to care for the child.

Thus, for FMLA purposes, an individual with in loco parentis status could be an employee who assumes a parental role for the child of a same-sex partner, an employee who provides day-to-day care for, but doesn't financially support, his unmarried partner's child, a grandparent who provides significant financial support for his granddaughter and cares for her when his daughter is away on military duty, or even an employee whose sister and nephew live with her and who cares for her nephew as if he were her own son, assisting in his day-to-day care and paying for his housing, clothes, food, and other living expenses.

Fact-specific inquiry

Whether the in loco parentis relationship has been established is determined by many things, the key factor being the intent of the employee to assume the status of a parent to a child. The determination is fact-specific and must be made on a case-by-base basis. Other factors to take into account include the age of the child, the degree to which the child is dependent on the individual claiming in loco parentis status, the amount of support provided, and the extent to which the employee exercises duties generally associated with parenthood.

In Nancy's case, given Mary's good-faith belief that she doesn't have any children, it would be appropriate for the HR director to ask about her relationship with the child. Mary may also inquire about Nancy's role or responsibility with respect to the child and the extent of her involvement with the child. If Nancy responds that the child is her partner's, the child lives with them, and she has either day-to-day caregiving or financial responsibility, or both, then she would be entitled to FMLA leave, assuming she meets the other criteria for leave.

If Nancy responds that she is only babysitting the child while her parents are vacationing in Europe, then she likely would not be entitled to FMLA leave, and Mary should deny her request for leave.

Remember that in loco parentis status under the FMLA doesn't apply just to leave to care for a child with a serious health condition. The FMLA also provides for leave for a child's birth, adoption, or placement in foster care. Thus, an employee whose same-sex partner gives birth to or adopts a child may also be entitled to FMLA leave.

Proof of in loco parentis status

If an employer has concerns about whether an employee's relationship to a child is covered under the FMLA, it may ask the employee to provide reasonable documentation or a statement of the family relationship. The DOL has said that a simple statement asserting that the requisite family relationship exists is all that is required when an employee seeks in loco parentis status without a legal or biological relationship to a child. In New York, where same-sex partners can register for domestic partnerships, evidence of such registration could also be used, although it is not required.

Bottom line

Federal and state law still have a way to go before people in same-sex and other nontraditional family relationships are provided the same rights and benefits afforded the more "traditional" nuclear family. Still, how much financial support is required to establish in loco parentis status? What if the employee has some day-to-day responsibilities and provides some financial support, but doesn't live with the child? Although the DOL's interpretation leaves certain questions unanswered, its clarification of the FMLA regulations is a significant step toward recognizing the rights of same-sex partners, and other nontraditional families, to care for their children regardless of whether a parent-child relationship is recognized by law. To protect your company from FMLA or discrimination-related claims, make sure that all requests for FMLA leave are treated the same, regardless of the employee's sexual orientation or marital status. Don't automatically deny leave if a parent-child relationship isn't readily apparent, but inquire appropriately into the relationship between the employee and the child for whom leave is being requested, without unnecessarily encroaching on the employee's privacy.

Remember, the DOL's interpretation is intended to clarify that the FMLA covers nontraditional households. However, the agency's interpretation is just that — an interpretation. It isn't the law. Nevertheless, courts generally give deference to agency interpretations of regulations and will examine the totality of the circumstances on a case-by-case basis in determining whether an employee qualifies for leave under the regulations. Employers must do the same when considering a request for leave.  

As appeared in New York Employment Law Letter, October 2010