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  • FMLA
  • June23rd

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    The DOL has recently clarified and expanded the definition of “son” or daughter” under the Family Medical Leave Act due to the uncertainty that many employers and employees have when there is no legal or biological parent-child relationship.  As you know, among other things, the FMLA allows an employee to take protected leave for the birth or placement of a child, to care for a newborn or newly placed child, or to care for a child with a serious health condition.  The definition of child for these purposes includes not only a biological or adopted child, but also a foster child, a stepchild, a legal ward or a child of a person standing in loco parentis.
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    In loco parentis refers 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.  Whether an employee stands in loco parentis to a child is a fact issue dependent on multiple factors. 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.  The FMLA regulations define in loco parentis as including those with day-to-day responsibilities to care for and financially support a child.

    The DOL’s interpretation of the regulations is that an employee who intends to assume the responsibilities of a parent  must only establish that he or she provides day-to-day care OR financial support in order to be found to stand in loco parentis and not have to prove both factors.

    Examples provided by the DOL:  (1)  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 FMLA leave in the applicable circumstances, because the employee stands in loco parentis to the child, (2)  a grandparent who takes in a grandchild, or an aunt who takes in a niece or nephew because the child’s parents are incapable of giving care or have passed away, even if such circumstances do not lead to a legal relationship with the child; and (3) an employee who cares for a child when the child’s parents are on vacation would not be considered in loco parentis to the child.