DOL clarifies FMLA “son or daughter” caregiver leave:
On June 22, 2010, the U.S. Department of Labor (“DOL”) issued Administrator’s Interpretation No. 2010-3 clarifying the circumstances under which a person stands “in loco parentis” to a child for purposes of taking leave under the Family and Medical Leave Act (“FMLA”) (29 U.S.C. § 2601 et. seq.).
The FMLA entitles employees with up to 12 weeks of job-protected leave for the birth or placement of a son or daughter, to bond with a newborn or newly placed son or daughter, and to care for a son or daughter with a serious health condition. “Son or daughter” is defined to include biological, adopted, or foster child, stepchild, legal ward, and a child of a person standing “in loco parentis.” Persons who are in loco parentis to a child include those with day-to-day responsibilities to care for and/or financially support a child. Thus, 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. The Interpretation is a step forward for gay and lesbian caregivers, and opens the door for caregivers in other nontraditional family structures. In light of the DOL’s interpretation, employers may need to adjust their FMLA policies to reflect the broader definition of “in loco parentis.”