What’s Considered a Parent-Child Relationship Under FMLA?

Nontraditional family units have created confusion for some employers when it comes to determining eligibility for family leave, particularly if there is no legal or biological parent-child relationship.

The days when most children lived in a traditional nuclear family can seem like ancient history. Children today might have more than two parents, fewer than two parents, parents of the same gender, or a variety of other parental arrangements.

In response, the U.S. Department of Labor (DOL) has clarified the definition of the parental relationship under the Family and Medical Leave Act (FMLA). The definition parallels the one used for the California Family Rights Act (CFRA), making the DOL’s clarification applicable to California employers. The clarification leaves no doubt that all families – including those in the lesbian-gay-bisexual-transgender community — are protected by the family leave laws.

Family Leave Rights

Under both the FMLA and the CFRA, an eligible employee can take a job-protected, unpaid leave of absence for up to a total of 12 workweeks in a 12-month period for:

• the birth or care of a newborn
• the placement of a child for adoption or foster care
• the care of a child with a serious health condition

Both laws define covered children to include the child of a person standing “in loco parentis” — acting in the place of a parent — to that child. Neither definition requires a legal or biological relationship with the child.

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The leave laws apply to businesses that directly employ 50 or more persons for at least 20 workweeks in the current or preceding calendar year, including joint employers and successors of covered employers.

Who Stands ‘In Loco Parentis’?

So which employees who don’t have a legal or biological relationship with a child are nonetheless entitled to family leave related to that child? According to the recent DOL Administrator’s Interpretation, the FMLA regulations define the term “in loco parentis” to include individuals with day-to-day responsibilities to care for and financially support a child.

The interpretation explains, however, that the regulations don’t require an employee who intends to assume parental responsibilities to establish that he or she provides both day-to-day care and financial support for that child to stand in loco parentis.

For example, an employee who provides day-to-day care for an unmarried partner’s child but doesn’t financially support the child would be entitled to take leave to care for that child in the case of a serious health condition. You should apply the same standard to requests for leave for the birth of a child and to bond with a child within the first 12 months after birth or placement.

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That a child has a biological parent in the home, or has both a mother and a father, doesn’t mean the child can’t also be the child of an employee without a legal or biological relationship with the child for leave purposes. A child of divorce, for example, could have four parents–the biological parents and the stepparents. Each of those parents would have equal rights to take leave to care for the child; the FMLA does not limit the number of parents a child can have for leave purposes.

Some attorneys have questioned whether the DOL’s interpretation of the regulations will stand up in court. Until the interpretation is definitively struck down, though, the safest path for employers is probably to follow the DOL’s guidance.

Tomorrow, we’ll look at some examples of in loco parentis relationships, as well as some tips for handling child-related leave requests.

Download your free copy of Compliance Guide to the Federal Family and Medical Leave Act and the California Family Rights Act today!