The FMLA allows an employee to take leave because of the birth of a son or daughter, the placement of a son or daughter for adoption or foster care, or to care for a son or daughter with a serious health condition. The FMLA defines a “son or daughter” as “a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is -- (A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability.”

In its letter, the DOL expanded the definition of “son or daughter” to include a person without a legal or biological relationship to the child. The DOL noted that Congress wanted the term “son or daughter” to be interpreted so that an employee who has assumed a parenting relationship can take leave from work to care for the child. Accordingly, a person who provides day-to-day care or who financially supports the child but does not have a biological or legal relationship with the child may qualify for FMLA leave by standing “in loco parentis;” in other words, if the person “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.” The employee’s intent to assume the status of a parent determines whether an employee is acting in loco parentis. For example, grandparents who raise a child after the parents cannot provide care or the same-sex partner who equally helps in raising a child would stand in loco parentis to the child.

In addition, the DOL clarified that the number of parents a child may have is not restricted. Whether a child has a biological parent in the home or has both a mother and father does not affect the conclusion that a child is a “son or daughter” of an employee without a legal or biological relationship to the child. If an employer questions whether the employee has the required relationship with the child under the FMLA, the employee should provide a statement asserting that such relationship exists.

In summary, this interpretation clarifies who is eligible to take FMLA leave to care for a “son or daughter.” It is especially significant because the domestic partner of a same-sex couple and other family members who assume a child-caring role may be eligible for FMLA leave. Employers should be aware of the expanded coverage to qualify for FMLA leave when caring for a child.

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If you have any questions regarding this Alert, please contact Chad W. Moeller (312-269-5370), a partner in the Neal Gerber Eisenberg Labor & Employment Practice Group, or any other member of the Group for more information.

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