FMLA Definition of “Son and Daughter”

DOL Offers Guidance On Definition Of "Son And Daughter" For FMLA Purposes

After having “received several requests for additional guidance regarding whether employees who do not have a biological or legal relationship with a child may take FMLA leave for birth, bonding, and to care for the child” (assuming all other FMLA criteria are met), the Department of Labor’s Wage and Hour Division’s Deputy Administrator Nancy J. Leppink (Administrator), issued an interpretation of the meaning of “in loco parentis” on June 22, 2010. The interpretation first outlines to whom the FMLA applies, then describes what Congress intended in creating the FMLA definition of “son and daughter,” then notes case law for assistance in defining in loco parentis, and then finally the Administrator states that the definition of in loco parentis under the regulations includes “those with day-to-day responsibility to care for and financially support a child. 29 C.F.R. §825.122(c)(3)”(emphasis added).  The Administrator then provides her interpretation as follows: “the regulations do not require an employee who intends to assume the responsibilities of a parent to establish that he or she provides day-to-day care and financial support in order to be found to stand in loco parentis to a child” (emphasis added) without providing any analysis as to the aforementioned case law or Congressional intent.

Instead, the Administrator attempts to clarify the interpretation by providing a couple of different examples and generalizations. The first example consists of an employee who provides day-to-day care for his/her unmarried partner’s child, for which the employee has no biological or legal relationship, but provides no financial support for the child. In this example, the employee could take FMLA leave to care for that child, if all the other FMLA criteria are met. A second example involves an employee who is sharing equally in the raising of a child, with the biological parent, but who does not have a legal relationship with that child. In this example, the employee is entitled to FMLA leave to bond with or care for that child.  And, the guidance specifically states that this applies to same sex partners, as well as heterosexual partners.

The Administrator notes that even if a child has a biological parent in the home or has both a biological mother and a father somewhere, this does not exclude another adult from being found to be in loco parentis to that child.  To clarify this latter point, the Administrator offers another example:  a child whose biological parents are divorced, and have both remarried, would be the “son or daughter” of all four of the parents, whether biological or step.   In other words, the FMLA “does not restrict the number of parents a child may have.” Although additional examples are provided, the bottom line of the Administrator’s analysis seems to be that the key factor in determining in loco parentis status is the day-to-day care of the child.  But what does day-to-day care mean? 

The above examples do not provide any guidance on this question.  Elaborating on the Administrator’s example of the divorced parents who both remarried, such situations typically necessitate that the child live with each set of parents on an allotted basis, split up based upon days of the week or number of weeks or even weekends in a month, usually determined by a family law judge.  So how many days equals “day-to-day care”?  Is one day, two days, or three days enough?    Since this question was not answered, employers and employees must await for either another interpretation or court decisions on this point.  In the meantime, take your best guess, and hope yours is not the case the court will use to answer this question.

Yet another question is raised by the Administrator’s guidance.  Is the Administrator interpreting the regulation’s “and” as an “or” meaning that the person provides either day-to-day care financial support or did the Administrator just eliminate the financial support part of the definition all together?  If day-to-day care is not provided, but financial support is, as in a situation where the grandparents are helping support their grandchild, is the financial support sufficient in and of itself to allow the grandparent in loco parentis status and therefore require FMLA leave to bond with the child or care for the child who has a serious health condition?   Given that the statute and regulations do not restrict the number of parents a child may have it seems the answer might be yes. But how is an employer to know for certain?  This is another “best guess” scenario that an employer may face, and once again hope that it is not the case with which a court provides guidance on the guidance. Oh, but wait, the Administrator says an employer is entitled to proof, which might help answer the question.   An employer can require that an employee provide reasonable documentation or a statement of the family relationship.  The Administrator then specifically states 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. 29 C.F.R. 825.122(j); 73 Fed. Reg. 67,952 (Nov. 17, 2008).”  So basically, it appears that if the employee “says so” then the child is a “son or daughter” under FMLA.  If that is the case, then why did we need the interpretation?

DSKeren