The U.S. Department of Labor has issued an Administrator’s Interpretation of the FMLA Regulation that includes “in loco parentis” relationships as part of the FMLA’s definition of “son” or “daughter”. It also has issued a Press Release announcing this is a “win for all families no matter what they look like.”
Slight But Significant Detail
The DOL seems to re-write an important provision of Section 825.122(c)(3) of the FMLA Regulations, which became effective on January 16, 2009. That section defines “in loco parentis” as including those “with day-to-day responsibilities to care for and financially support a child.” (Emphasis added.) The Administrator’s Interpretation states, “[T]he regulations do not require an employee who intends to assume the responsibilities of a parent to establish that he or she provides both day-to-day care and financial support in order to be found to stand in loco parentis to a child.”
Thus, according to the DOL Administrator, the word “and” should be interpreted to mean “or” in Section 825.122(c)(3). Only time will tell if courts agree with such an interpretation.
Prior to the June 22 Administrator’s Interpretation, employees have not been foreclosed from arguing that individuals standing in loco parentis to a child covered under the FMLA could take FMLA leave for the birth or adoption of that child or to care for a child with a serious health condition. Absent a further interpretation from the DOL, individuals taking FMLA leave because they stand in loco parentis to a child are not subject to the FMLA regulations (Sections 825.120(a)(3) and 825.127(d)) that limit the amount of leave to a combined total of 12 weeks (or 26 weeks to care for an injured servicemember); those limitations apply only to a “husband and wife” working for the same employer. Thus, for example, an employee who is the biological parent of a child and a grandparent or same sex partner standing in loco parentis to that child each would be entitled to take the full complement of 12 workweeks of FMLA leave upon the birth or placement of the child. While this is not new, it may create additional complications under the DOL’s broader interpretation of in loco parentis.
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