Family leave expanded
In late June, the Department of Labor (DOL) issued what is called an “administrative clarification” under the Family Medical Leave Act (FMLA). What needed clarification in this 1993 law? The definition of “son or daughter”. The clarification now broadens the definition to non-traditional family relationships.
The new Interpretation grants leave rights to individuals who assume the responsibilities of a parent, regardless of whether there is a legal or biological relationship between the individual and the child.
The Labor Department declared that the Interpretation, “is a victory for many non-traditional families.” Hilda Solis, U.S. Secretary of Labor, said, “The Labor Department’s action sends a clear message to workers and employers alike: All families, including LGBT [lesbian-gay-bisexual-transgender] families, are protected by the FMLA.”
FMLA allows eligible employees to take up to 12 weeks of protected leave. To be eligible for FMLA leave, an employee must have been employed for at least 12 months by the employer and for at least 1,250 hours of service with the employer during the 12 months preceding the leave, and be employed at a worksite at which the employer employs at least 50 employees within 75 miles of the worksite.
FMLA’s definition of a son or daughter includes not just biological or adopted children, but also foster children, stepchildren, legal wards and the son or daughter of individuals who serve as if they were parents or in loco parentis.
Each relationship between an individual and a child is evaluated on a case-by-case basis to determine whether the individual is entitled to FMLA-protected leave. As a result, the DOL received several requests for additional guidance on when employees are entitled to take leave related to a child if no legal or biological relationship exists between the employee and the child.
The Interpretation provides that in order for individuals to stand in loco parentis, they do not need to provide both day-to-day care and financial support for the child. For example, an employee who cares for his or her unmarried partner’s child on a day-to-day basis could be considered to stand in loco parentis to the child and be entitled to FMLA leave to care for the child, even in the absence of a biological or legal relationship and even if such employee does not provide financial support for the child.
Therefore, an employee who intends to share equally in the raising of the child with the child’s biological parent is entitled to FMLA leave for the child’s birth or to care for the child if he or she has a serious health condition. Similarly, an employee who will share equally in the raising of an adopted child with a same sex parent, 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 had a serious health condition, because the employee stands in loco parentis to the child.
Accordingly, the protections of the FMLA extend to grandparents, aunts, partners and others who assume the responsibilities of raising a child and allow employees who have assumed such responsibilities to take leave for FMLA qualifying reasons related to the child.
The DOL specifically noted a determination that an individual who stands in loco parentis to the child is not precluded simply because the child has a biological parent in the home or has both a mother and father.
What does this means for employers? The clarification expanded the definition of in loco parentis by stating that an individual need only provide day-to-day care or financial support, but not both, to be found to stand in loco parentis and be entitled to leave under the FMLA.
Additionally, the Interpretation expressly applied the definition of “son or daughter” and in loco parentis to lesbian and gay families, regardless of whether the state in which the employer is located legally recognizes the relationship. As a result, more employees may be entitled to take FMLA leave to care for a child or be present for the birth or adoption of child.
If you need to substantiate a relationship between the employee and the child, you may require the employee to provide “reasonable” documentation or a statement regarding the relationship. But the DOL stated that “[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.”
For more information on the FMLA and the administrative Interpretation, visit the Wage & Hour Division’s website at
DOL.gov/whd, or call the division’s toll-free helpline at (866) 487-9243.
Members will also have a chance to ask questions to Attorney Joseph Schmitt, of Nilan Johnson Lewis PA, during the Fall Convention in Dallas. Schmitt’s session, along with the 30-minute free phone consultation on HR matters, is provided by the FEMA Services Corp., Inc. Just another valuable benefit of membership in the Farm Equipment Manufacturers Association.