Apparently unsatisfied with the traditional meaning or understanding, the DOL has determined that “additional clarification” was required concerning the meaning of the term “son or daughter” under the Family Medical Leave Act (“FMLA”). The new interpretive guidance has the potential to greatly expand the list of reasons an employee may request leave under FMLA and employers need to be prepared accordingly.

Traditionally, an employee has been permitted to take up to twelve (12) weeks of unpaid leave, to, among other reasons, attend to “the birth of the employee’s son or daughter, and to care for the newborn child,” “the placement with the employee of a son or daughter for adoption or foster care, and to care for the newly placed child,” or “to care for the employee’s spouse, son, daughter, or parent with a serious health condition.” “Son or daughter” has been defined in the regulations as “a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under age 18, or age 18 or older and ‘incapable of self-care because of a mental or physical disability’ at the time that FMLA leave is to commence.”

Now, in its June 22, 2010 guidance, the DOL has expanded that definition – in spite of a prior explanation contained in its own regulations. Previously, the “in loco parentis” provision of the FMLA’s definition of “son or daughter” referred to persons who have day to day responsibilities to care for and to financially support a child regardless of biological relationship (or lack thereof). Relying on the FMLA’s legislative history, the DOL has now opined that an employee can be considered in loco parentis to a child and, therefore, entitled to a leave of absence under FMLA through either day-to-day care or financial support of a child.

Obviously, this relaxed definition could lead to a particular child having more than two parents – a scenario which the DOL has contemplated and given its blessing, noting that “[n]either the statute nor the regulations restrict the number of parents a child may have under the FMLA.” The DOL also cautions that simply because a child has a biological parent (or two) in the home, an employee who both lacks a biological relationship and does not live with the child is not automatically precluded from being in loco parentis to that child. In its recent guidance, the DOL describes numerous situations where this could occur. For example, an employee who provides day-to-day care for an unmarried partner’s child (with whom there is no legal or biological relationship) but provides no financial support could be considered in loco parentisunder FMLA. The same reasoning applies where an employee who will share in the raising of a same-sex partner’s adopted child. That employee would be entitled to FMLA leave to bond with the adopted child or to care for the child if he or she were suffering from a serious health condition because the employee stands in loco parentis to the child. Similarly, where the parents of a biological child divorce and remarry, the biological and step-parents would be entitled to leave under FMLA. The DOL did draw a line and noted that an employee who cares for a child while the child’s parents are on vacation would not satisfy the in loco parentisstandard. In sum, the DOL declared that the existence of an in loco parentis relationship depends on the particular facts and should be made on a case by case basis; however, the relaxed standard counsels in favor of employees being granted leave in such circumstances.

How can employers respond, and what documentation can employers request in such situations? The DOL permits employers to request documentation to support FMLA leave requests, however, such requests may ring somewhat hollow. An employer may request “reasonable documentation or a statement of the family relationship.” However, in return, an employee is only required to provide “a simple statement asserting the family relationship exists,” if no legal or biological relationship does in fact exist.

The definitions controlling the FMLA’s leave entitlements have often served as a gatekeeper to control the number of employees and the number of situations where the twelve (12) week leave applies. The DOL’s recent and relaxed interpretation of what constitutes an employee’s “son or daughter” can certainly lead to that gate being opened a little wider – without the ability to require significant documentation justifying the opening of the door. Employers should take heed of this expanded class of FMLA entitlements and keep an eye on the gate.

Tom Kleeh concentrates his practice in labor and employment law. Mr. Kleeh has experience defending employers in protected class litigation and claims in discrimination claims against employers based upon age, race, sex, disability, religion and national origin as well as claims of sexual and other forms of unlawful harassment. He has defended claims for breach of contract, retaliatory discharge, defamation, invasion of privacy, and other employment-related torts.
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