The Wage and Hour Division of the U.S. Department of Labor recently issued guidance on the definition of “son or daughter” aimed at members of non-traditional families seeking FMLA eligibility to take approved leave for the birth or adoption of a child, to care for a newborn or newly-placed child, or to care for a child with a serious health condition. This guidance provides an expansive definition of the parent-child relationship by including circumstances where there is no biological or legal parent-child relationship, but the employee has a caregiving relationship, nonetheless.
The FMLA language defines 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 [. . .].” The DOL guidance states that an employee may stand in loco parentis to a child if s/he has either day-to-day responsibilities to care for the child or provides financial support. The in loco parentis analysis is a fact-specific one that looks to the age of the child, the degree to which the child is dependent on the employee, the amount of support provided by the employee, and the degree to which the employee exercises duties regularly associated with parenthood. Neither the FMLA nor regulations restrict the number of “parents” a child may have for FMLA purposes.
Where an employer is unsure if an employee’s relationship to a child supports FMLA eligibility, the employer may require reasonable documentation of the family relationship, which can be satisfied by a simple statement asserting that the requisite caregiving relationship exists for in loco parentis situations for which there is no legal documentation.
