Employment-DOL Clarifies FMLA Definition Of Son And Daughter

According to a News Release (dated 6/22/10), the Department of Labor (“DOL”) has clarified the definition of “son and daughter” under the Family and Medical Leave Act (the “FMLA”) to ensure that an employee who assumes the role of caring for a child (that is, who stands “in loco parentis” to a child) receives parental rights to family leave, regardless of the legal or biological relationship.

The News Release says that the FMLA allows a worker to take up to 12 weeks of unpaid leave during any 12-month period for the birth and care of a newborn child, to adopt or assume care for a foster child, to care for an immediate family member (spouse, child or parent) with a serious health condition or to take care of the worker’s own serious health condition. An administrative interpretation (Administrator’s Interpretation No. 2010-3), issued by the DOL’s Wage and Hour Division, clarifies that these rights extend to the situation in which a worker stands “in loco parentis” to a child (that is, the worker has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation, without going through any legal formalities).

This interpretation thus extends the right to FMLA leave to various parenting relationships that exist in today’s world. It applies to many non-traditional families, including families in the lesbian-gay-bisexual-transgender community, who often in the past have been denied leave to care for their loved ones. As the interpretation makes clear, an uncle who is caring for his young niece and nephew when their single parent has been called to active military duty may exercise his right to FMLA leave. Likewise, a grandmother who assumes responsibility for her sick grandchild when her own child is debilitated will be able to seek FMLA leave. Also, an employee who intends to share in the parenting of a child with his or her same sex partner will be able to exercise the right to FMLA leave to bond with that child.