Definition of “Son or Daughter” in FMLA Expanded by Department of Labor Opinion Letter

The U.S. Department of Labor issued an Opinion Letter clarifying that an employee who has day-to-day responsibilities to either care for or financially support a child qualifies for leave under the Family and Medical Leave Act (FMLA), even if the employee has no biological or legal relationship with the child.

The FMLA protects eligible employees who take leave to address any enumerated medical, personal, or exigent obligations by guaranteeing up to 12 workweeks of unpaid, job-protected leave within a 12-month period. An employer may not deny a leave request or fire an employee who takes leave where the employee has established leave eligibility under the FMLA.

The FMLA was unclear on whether an employee without a biological or legal relationship to a child was eligible to take leave to attend that child’s birth, bond with that child, or care for that child. On June 22, 2010, the Wage and Hour Division of the U.S. Department of Labor responded with Administrator’s Interpretation No. 2010-3. This Opinion Letter clarifies the definition of “son or daughter” under the FMLA for employees who care for that child in loco parentis (literally, “in the place of a parent” as a temporary guardian or caretaker), but do not have a biological or legal relationship to a child.

The FMLA statute defined a “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. (29 U.S.C. § 2611(12).) The FMLA regulations state that employees with day-to-day responsibilities to care for and financially support a child qualified for FMLA leave in loco parentis. (29 C.F.R. § 825.122(c)(3).)

The Opinion Letter explains that the FMLA does not require an employee who assumes the responsibilities of a parent to establish in loco parentis status by presenting evidence of both day-to-day care and financial support of a child. This interpretation, based on Congress’ expansive discussion of who should benefit from the FMLA, recognizes the fact-specific nature of qualifying an employee as standing in loco parentis and the difficulty in anticipating when an employee might need to claim in loco parentis status.

Furthermore, in loco parentis may be found in cases where a child has one biological parent in the home, or has both a mother and father. Yet a finding of in loco parentis status is always precluded where an employee wishes to care for a child when the child’s parents are unavailable due to a vacation.

This interpretation of the FMLA comports with Congress’ legislative intent for a liberal construction of “son or daughter,” which was meant to consider employees from families other than those where two biological or legal parents primarily care for a child. Employees from these so-called “non-traditional families” may now take FMLA leave to care for a child as their “son or daughter” so long as they can provide reasonable documentation or a statement of the family relationship at the employer’s request. The employee’s statement need only assert that the requisite family relationship exists.

While all “non-traditional families” stand to benefit, this Opinion Letter has the most significance for employees from the lesbian, gay, bisexual, and transgender community, which the Secretary of Labor identified as disproportionately impacted by the FMLA’s earlier ambiguity in this particular area of the law.

Meyers Nave routinely advises and represents public agencies on labor and employment issues. For more information about FMLA or other laws pertaining to employee leave issues, or to request FMLA training at your agency contact Eddie Kreisberg at 800.464.3559.