Who’s a son or daughter under FMLA? Not as easy a question as it might appear to be. And the flip side—who’s a parent is equally murky. Fortunately, the DOL’s Wage and Hour Division (WHD) has clarified the situation somewhat.
It’s not that hard to determine family relationships when there’s a biological or legal relationship, like a formal adoption. The tricky part is when an employee is standing “in loco parentis” to a child, or when an employee wants leave to care for a person who stood in loco parentis to the employee.
The FMLA rule on Sons and Daughters
The FMLA entitles an eligible employee to take up to 12 workweeks of job-protected leave because of the birth of a son or daughter of the employee and in order to care for such son or daughter, because of the placement of a son or daughter with the employee for adoption or foster care, to bond with a newborn or newly placed son or daughter, and to care for a son or daughter with a serious health condition.
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.” (For purposes of an employee’s entitlement to take military FMLA leave for a son or daughter, there is no age restriction.)
In Loco Parentis
WHD notes that congress intended the definition of “son or daughter” to reflect the reality that many children in the United States today do not live in traditional ‘nuclear’ families with their biological father and mother. Increasingly, those who find themselves in need of workplace accommodation of their child care responsibilities are not the biological parent of the children they care for, but their adoptive, step, or foster parents, their guardians, or sometimes simply their grandparents or other relatives or adults.
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The key in determining whether the relationship of in loco parentis is established is found in the intention of the person allegedly in loco parentis to assume the status of a parent toward the child.
Courts have enumerated factors to be considered in determining in loco parentis status; these factors include:
- the age of the child;
- the degree to which the child is dependent on the person claiming to be standing in loco parentis;
- the amount of support, if any, provided; and
- the extent to which duties commonly associated with parenthood are exercised.
WHD’s interpretation is that the 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.
For example, where an employee provides day-to-day care for his or her unmarried partner’s child (with whom there is no legal or biological relationship) but does not financially support the child, the employee could be considered to stand in loco parentis to the child and therefore be entitled to FMLA leave to care for the child if the child had a serious health condition.
The same principles apply to leave for the birth of a child and to bond with a child within the first 12 months following birth or placement.
Similarly, an employee who will share equally in the raising of an adopted child with a same sex partner, but who does not have a legal relationship with the child, would be entitled to leave.
A grandfather may take leave to care for a grandchild whom he has assumed ongoing responsibility for raising if the child has a serious health condition.
An aunt who assumes responsibility for caring for a child after the death of the child’s parents may take leave to care for the child if the child has a serious health condition.
The fact that a child has a biological parent in the home, or has both a mother and a father, does not prevent a finding that the child is the “son or daughter” of an employee who stood in loco parentis.
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Neither the statute nor the regulations restrict the number of parents a child may have under the FMLA.
For example, where a child’s biological parents divorce, and each parent remarries, the child will be the “son or daughter” of both the biological parents and the stepparents and all four adults would have equal rights to take FMLA leave to care for the child.
Clear? In tomorrow’s Advisor, we’ll look at the flip side—FMLA for employees to care for people who stood in loco parentis for them, plus an introduction to the book some call the "FMLA Bible."