WORKPLACE LAW -
"Son or Daughter" Defined Under the FMLA
Question:
We have an employee who is beginning his second week of leave to help take care of his girlfriend’s daughter, who was recently diagnosed with a serious illness. The employee has used all of his sick time and vacation, and is now on unpaid leave. My question is whether his leave should be designated as FMLA leave. Our company has over 50 employees, and the employee on leave is otherwise eligible for FMLA leave (he has worked for us for over 12 months and worked more than 1250 hours in the past year). However, he is not married and is not the child’s father. Is he eligible for 12 weeks of unpaid, job-protected leave under the FMLA? Is there any information that I should require the employee to provide?
Answer:
The FMLA 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, who is (A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability.” Relevant to your situation, the U.S. Department of Labor (“DOL”) recently issued an interpretation letter clarifying the definition of a “son or daughter” under the FMLA as it applies to an employee standing “in loco parentis” to a child. The guidance provides that an employee such as the one you refer to may be eligible for FMLA leave for the birth or placement of a child, or to care for a son or daughter with a serious health condition, even if that employee has no biological or legal relationship with the child.
The FMLA regulations define “in loco parentis” as including those employees with day-to-day responsibilities to care for and financially support a child. “In loco parentis” is commonly understood to refer to “a person who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to legal adoption.” Congress has stated that the definition was intended to be “construed to ensure than an employee who actually has day-to-day responsibility for caring for a child is entitled to leave even if the employee does not have a biological or legal relationship to that child.”
Note that the DOL interpretation letter specifically mentions its application to unmarried partners and same-sex partners. Also, the fact that the child has a biological parent at home, or has both a mother and a father, does not prevent a finding that an employee with a non-biological relationship is eligible for FMLA leave. “Neither the statute nor the regulations restrict the number of parents a child may have under the FMLA.”
With respect to requiring information in order to determine whether an employee is eligible for FMLA leave as an individual “in loco parentis,” the DOL letter states, “Where an employer has questions about whether an employee’s relationship to a child is covered under the FMLA, the employer may require the employee to provide reasonable documentation or statement of a family relationship. A simple statement asserting that the requisite family relationship exists is all that is needed in situations such as in loco parentis where there is no legal or biological relationship.” The interpretation further clarifies, “[T]he regulations do not require an employee who intends to assume the responsibilities of a parent to establish that he or she provides both day-to-day care and financial support in order to be found to stand in loco parentis to a child.”
Thus, employers must act with care and consistency when requesting documentation of family relationship. The question of whether an employee stands “in loco parentis” to a child is a fact issue dependent on multiple factors, including the age of the child; the degree to which the child is dependent on the person; the amount of support, if any, provided; and the extent to which day-to-day care and other duties commonly associated with parenthood are exercised. You may ask the employee to provide information so you can determine if the relationship between the employee and child meets the broad definition of “in loco parentis” for FMLA eligibility.
The Department of Labor interpretation letter can be obtained at
http://www.dol.gov/whd/opinion/adminIntrprtn/
FMLA/2010/FMLAAI2010_3.htm.
For general information regarding FMLA, visit
http://www.dol.gov/whd/fmla/.
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