The FMLA Compendium, A Comprehensive Guide For Complying With The Amended Family & Medical Leave Act 2011-2012

Free Preview: “In Loco Parentis” Clarified! Below is an explanation and clarification of this change to the FMLA. This change applies to an employee standing “in loco parentis” to a child. 1. The Administrator determined: additional clarification is needed on the definition of “son or daughter” 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. 1.1 Background: FMLA entitles eligible employee to take up to 12 workweeks of job-protected leave,“[b]ecause of the birth of a son or daughter of the employee and in order to care for such son or daughter,” “[b]ecause of the placement of a son or daughter with the employee for adoption or foster care,” and to care for a son or daughter. 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.” 1.2 DOL has received requests for additional guidance. 1.3 The definition of “son or daughter” under FMLA includes not only a biological or adopted child, but also a “foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.” 1.4 Congress intended the definition of “son or daughter” to reflect “the reality that many children today do not live in ‘nuclear’ families with biological father and mother. Congress stated the definition was intended to be construed to ensure that an employee who actually has day-to-day responsibility for caring for a child is entitled to leave even if the employee does not have a biological or legal relationship to that child.” 1.5 “In loco parentis” is commonly understood to refer to “a person who put him/herself in the situation of a lawful parent by assuming the obligations incident to the parental relation without the formalities of legal adoption. 1.6 Whether an employee stands “in loco parentis” to a child is a fact dependent issue. Courts have enumerated factors to consider in determining in loco parentis status. Factors include age of the child; degree to which child is dependent on person claiming to be standing in loco parentis; amount of support provided; and extent to which duties commonly associated with parenthood are exercised. 1.7 The FMLA regulations define “in loco parentis” as including those with day-to-day responsibilities to care for and financially support a child. Employees without a biological or legal relationship with a child may stand in loco parentis to the child and entitled to FMLA. It is the Administrator’s interpretation that regulations do not require an employee who intends to assume the responsibilities of a parent to establish that s/he provides day-to-day care and financial support in order to be found to stand in loco parentis to a child. For instance: 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 had a serious health condition, because the employee stands in loco parentis to the child. 1.8 Because a child has a biological parent in the home, or has both a mother and a father, does not prevent a finding that the child is the “son or daughter” of an employee who lacks a biological or legal relationship with the child for purposes of taking FMLA leave.   1.9 Examples of situations in which an “in loco parentis” relationship may be found include a grandparent takes in a grandchild assuming ongoing responsibility for the child because the parents are incapable of providing care, or an aunt assumes responsibility for raising a child after the death of the child’s parents. 1.10 Conclusion: Based upon an examination of relevant factors, it is the Administrator’s interpretation 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. In all cases in loco parentis to a child will depend on the particular facts. 1.11 This Administrator’s Interpretation does not address an employee’s entitlement to take military FMLA leave for a son or daughter, which is determined by separate definitions. See 29 C.F.R. § 825.122(g), (h). 1.12 There is no specific set of factors that, if present, will be considered to be dispositive in determining in “loco parentis status.” See e.g., Martin v. Brevard County Public Schools, 543 F.3d finding issue of material fact on in loco parentis issue where employee helped his girlfriend's son eat, dress, get ready for bed, took child to doctor appointments and to school and contributed more than half of child's financial support. 1.13 Issues For Employers: (The following questions listed in 1-2-3&4 below are concerns raised by Mike Murphy and are not the opinion of the Administrator). 1) Does this interpretation of “In Loco Parentis” mean an employee can qualify for FMLA to care for the son or daughter of a same-sex partner because the definition of "son or daughter" includes a child of a person standing "in loco parentis?" 2) Does this interpretation expand the definition of “parent” as understood and used in the FMLA to a broader meaning and interpretation and create a more difficult, complicated situation for employer? 3) Does the DOL intend to publish rules, which clarify what criteria an employer may rely upon to determine if an employee without a biological or legal tie to a child will fall under the protection and entitlement of FMLA because they say they are in loco parentis? 4 This Action illustrates how FMLA evolves through interpretation, by administrators; by court rulings and by amendment.