The United States Department of Labor has announced a clarification regarding the FMLA definition of “son or daughter” as it applies to an employee entitled to take 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 DOL wants to ensure that an employee who assumes the role of caring for a child receives parental rights to family leave regardless of the legal or biological relationship, or lack thereof, to the child.
According to the DOL, parental rights under the FMLA extend to “the various parenting relationships that exist in today’s world. . . including families in the lesbian-gay-bisexual-transgender community.”
The FMLA has always provided parental rights to one standing in loco parentis to a child to take leave to care for the child. In loco parentis is defined by the FMLA regulations as including persons “with day-to-day responsibilities to care for and financially support a child”. 29 C.F.R. § 825.122(c)(3). A biological or legal relationship is not required.
The Interpretation further defines in loco parentis as “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. It embodies the two ideas of assuming the parental status and discharging the parental duties.”
Read more about key points in the Administrator’s Interpretation in our September FMLA newsletter.