The Wage and Hour Division of the U.S. Department of Labor recently issued an Administrator’s Interpretation expanding the definition of “son” or “daughter” under the FMLA. The FMLA entitles an eligible employee to take up to 12 work-weeks of leave for “the birth of a son or daughter,” “the placement of a son or daughter with the employee for adoption or foster care,” or “because of the son or daughter’s serious health condition.” 29 U.S.C. § 2612 (a)(1). The FMLA defines “son or daughter” to include the child of a person standing “in loco parentis.” 29 U.S.C. § 2611(12). In the recent Interpretation, the Administrator expands the definition of “son or daughter” by broadly interpreting who qualifies as acting “in loco parentis.”
The Administrator concluded that an employee acts “in loco parentis” by having day-to-day responsibilities to care for the child or by financially supporting the child. The FMLA regulation concerning the definition of “son” or “daughter” suggests that standing in loco parentis requires both the responsibilities of care and the financial responsibility. 29 C.F.R. § 825.122(c)(3). In requiring that only of these two factors be met, the Administrator crafted the Interpretation with an eye toward the non-traditional family, such as, for example, “an employee providing day-to-day care for an unmarried partner’s child” or “an employee who will share equally in the raising of an adopted child with a same sex partner” who lacks a legal relationship to the child.
The Administrator noted that that while a grandparent who assumes responsibilities for a grandchild while the parents are incapable of providing care would meet the definition, a employee who cares for a child while the child’s parents are away on vacation would not be considered to in loco parentis to that child. Should an employer question the parental status of an employee, the employee will only be required to give the employer a simple statement of the family relationship as documentation.
While benefitting the non-traditional family, this new Interpretation might produce incongruous results for the “traditional” family. FMLA regulations limit a husband and wife who work for the same employer to a total of 12 weeks of leave. Since no similar regulations exist for “non-traditional” parents, such parents may have access to twice the amount of leave.
Although the Administrator’s Interpretation purports to limit itself to employees standing “in loco parentis” who seek leave to care for minors, the definition of “son” and “daughter” being interpreted is the general definition for the FMLA statute. Thus, this new Interpretation could apply not only to non-traditional parents caring for minors, but also to other actions encompassed by the FMLA, such as children taking leave to care for their elderly and ailing “in loco parentis” parents.