USDOL Guidance on FMLA Leave for Persons "In Loco Parentis" to Care for Child

The U.S. Department of Labor (USDOL) has issued guidance confirming that employees who intend to assume the responsibilities of a parent and provide either day-to-day care or financial support for a child, may be eligible for FMLA leave upon the child’s birth or adoption/foster placement, or to care for the child if he or she becomes seriously ill. In other words, neither a biological nor legal relationship is required to establish a parent/child relationship for the purpose of qualifying for leave under the FMLA. The USDOL Administrator’s Interpretation No. 2010-3, issued June 22, 2010, is being characterized as supportive of nontraditional families, including those involving same-sex couples.  

According to the USDOL, employers and employees have had difficulty determining FMLA leave eligibility of a person standing “in loco parentis.”  29 C.F.R. § 122(c). To clear up this confusion and provide guidance, the USDOL states that under its interpretation of the FMLA’s definition of “in loco parentis” an employee need not demonstrate both day-to-day care and financial support in order to qualify even though the regulation seems to require both (in the regulation individuals who are “in loco parentis” are defined as those “with day-to-day responsibilities to care for and financially support a child”). Instead, either one will do so long as the individual “intends to assume the responsibilities of a parent.”  USDOL acknowledged, however, that ultimately “whether an employee stands ‘in loco parentis’ to a child will depend on the particular facts.”

USDOL’s Interpretation relies upon its examination of Congressional intent and case law regarding the legal concept of “in loco parentis.” USDOL noted that Congress expressly intended that the FMLA extend beyond a “traditional ‘nuclear’ family” and be “construed to ensure that 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.” See S. Rep. No. 103-3, at 22. In addition, the USDOL Administrator’s Interpretation relied on court rulings that found that the dominant inquiry for establishing “in loco parentis” is whether an individual intends to assume the status of a parent. See Dillon v. Maryland-National Capital Park and Planning Comm’n, 382 F. Supp. 2d 777, 787 (D. Md. 2005).

DWT Advice

This Administrator’s Interpretation does not create a bright line test. Employers may still face difficulty when determining the FMLA eligibility of an employee with a nontraditional family structure. The key takeaway is to keep an open mind when faced with a leave request based on a nontraditional parent/child relationship. Employers may also want to review their FMLA policies to ensure that they do not include language excluding these types of relationships from eligibility.

Examples of qualifying scenarios may include:

• An employee who provides day-to-day care (but not financial support) for his or her domestic partner’s child.
• An employee who will share equally with a same-sex partner in the raising of a child, who the employee has not formally adopted, but who the employee financially supports.
• An employee who assumes responsibility for raising her niece after the death of the child’s parents.
• An employee who assumes responsibility for raising his grandchild, despite maintaining a relationship with the child’s biological parents.  In this scenario, the child’s biological parents may also meet the criteria for eligibility.

Examples of non-qualifying scenarios include:

• An employee who cares for a child while the child’s parents are on vacation.
• An employee who provides neither day-to-day care nor financial support for his seriously ill goddaughter.

While the USDOL acknowledged that an employer may require the employee to provide documentation establishing the family relationship, it noted that “[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.” Given this low threshold required of the employee, it may be difficult for employers to dispute the existence of a questionably qualifying relationship. When faced with such determination, it is advisable to consult with experienced employment counsel before denying FMLA leave in such circumstances.