• DOL Interpretation Letter Clarifies Coverage of the FMLA
  • August 26, 2010
  • Law Firm: Faegre Benson LLP - Minneapolis Office
  • The Department of Labor recently issued an interpretation letter clarifying the definition of "son or daughter" under the Family and Medical Leave Act (FMLA). The interpretation letter explains that the FMLA may cover leave for domestic partners, grandparents, or other non-traditional family relationships for the birth or placement of child or to care for a child with a serious health condition.

    FMLA allows up to 12 weeks of unpaid leave in any 12-month period for eligible employees for the birth of a child, placement of a son or daughter for adoption or foster care, or to care for a child with a serious health condition. Federal regulations on FMLA defined 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 under the age of 18 or is incapable of self-care because of a disability. 29 C.F.R. § 825.122(c). The regulations further define in loco parentis as including those "with day-to-day responsibilities to care for and financially support a child" regardless of a biological or legal relationship. 29 C.F.R. § 825.122(c)(3).

    The DOL's interpretation letter confirms that a domestic partner, grandparent, or other non-traditional family relationship may fall under the coverage of FMLA. In contrast to the regulation, the letter states that an individual standing in loco parentis who provides either day-to-day care or financial support for a child is entitled to FMLA leave. For example, the employee may share parental responsibilities with the child's biological parent, as in the case of a stepparent or domestic partner.

    Notably, the letter makes clear that there is no restriction on the number of parents a child may have for FMLA purposes. Even if a child has two biological parents, an employee may still be entitled to FMLA leave if they stand in the role of the parent by providing either day-to-day care or financial support for the child.

    An employer may request documentation from an employee who claims an in loco parentis relationship under the FMLA. Under FMLA regulations, a "simple statement" by the employee is enough to establish that the family relationship exists. 29 C.F.R. § 825.122(j).

    The regulation does not clarify whether the in loco parentis relationship must be a permanent arrangement. The letter makes clear that an employee caring for a child whose parents are on vacation would not be entitled to FMLA leave, but leaves open the question of whether an employee would be entitled to FMLA leave to care for a child whose parents are deployed in the military.

    Employers should ensure that existing FMLA policies and practices comply with the DOL guidance in a way that allows employees with non-traditional family relationships to take FMLA leave under appropriate circumstances.