by Diane J. Geller, Esq.
On June 22, 2010, the US Department of Labor clarified the definition of a “son or daughter” under the Family and Medical Leave Act (FMLA). The FMLA, which applies to companies who have more than 50 employees within a 75 mile radius allows eligible workers to take up to 12 weeks of unpaid leave during any 12 month period to care for a child, spouse, parent or for themselves. The statute also provides for eligible workers to take time off for the birth or adoption of a child.
The Wage and Hour Division’s Deputy Administrator, Nancy Leppink issued an interpretation of the term son and daughter to extend the parental rights to the various relationships that exist today. Her interpretation states “…employees who have no biological or legal relationship with a child may nonetheless stand in loco parentis to the child and be entitled to FMLA leave.” She went on to write that “Neither the statute nor the regulations restrict the number of parents a child may have under the FMLA…”
The interpretive guidance states in part “…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.”
The intent and result of this interpretation is that an employee who lacks a biological or legal relationship may still be entitled to FMLA leave. Some examples include instances where the child has four parents in the case of a divorce and remarriage (2 parents and 2 step parents); other circumstances where a person steps in to parent a child when the biological parent is unavailable such as in cases where the parent is in the military or a grandparent who cares for a sick grandchild. The interpretation is also intended to address non-traditional families, including unmarried partners and families in the lesbian, gay, bisexual or transgender community. Further, the interpretation makes clear that there is no requirement that the employee have a legal relationship with the child to find that he or she is eligible to be considered to have in loco parentis standing for the purposes of receiving FMLA leave.
The Secretary of Labor Hilda L. Solis said “No one who loves and nurtures a child day-in and day-out should be unable to care for that child when he or she falls ill…” “No one who steps in to parent a child when that child’s biological parents are absent or incapacitated should be denied leave by an employer because he or she is not the legal guardian. No one who intends to raise a child should be denied the opportunity to be present when that child is born simply because the state or an employer fails to recognize his or her relationship with the biological parent.”
Ms. Leppink stated that when an employer has questions about whether a FMLA eligible worker’s relationship to a child is covered by the Act, the employer may require that the employee provide documentation or a statement about the family relationship. She wrote 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.”
See http://www.dol.gov/whd/opinion/adminIntrprtn/FMLA/2010/FMLAAI2010_3.htm for a complete copy of the Administrator’s Interpretation.An attorney for over 25 years and admitted to practice in Florida, New York, Tennessee, and Virginia, Diane J. Geller has serviced contingent staffing companies and their vendors for over 20 years. A frequent staffing industry speaker, she provides invaluable information on contract negotiations, employment law, receivables financing, franchise law, litigation, governmental compliance, and general corporate matters. For more information, visit www.gentrylocke.com/geller. The contents are intended for general information purposes only, and you are urged to consult a lawyer concerning your own situation and any specific legal questions you may have. For further information about the contents, please contact the author at (540) 983-9396. (Copyright 2010, Gentry Locke Rakes & Moore, LLP, and Diane J. Geller, Esq.