Dear Ric Joyner,
On Tuesday, June 22, the Wage and Hour Division of the U.S. Department of Labor issued an interpretation letter (No. 2010-3) clarifying the definition of "son or daughter" under the Family and Medical Leave Act (FMLA), as it relates to "a child of a person standing in loco parentis." Administrative interpretation and opinion letters do not require the agency to go through the notice and comment process, as long as the letters merely clarify the interpretation of existing rules and definitions.
In the preamble of the letter, DOL indicated that the agency has received several requests for interpretation of whether leave may be taken by employees lacking a biological or legal relationship to a child.
The new guidance, a copy of which is available by clicking HERE, provides that a person may be eligible for unpaid FMLA leave for the birth or placement of a child, or to care for a son or daughter with a serious health condition, even if that person has no biological or legal relationship with the child.
In determining whether an employee is eligible for FMLA leave, the interpretation states that "the employer may require the employee to provide reasonable documentation or statement of a family relationship. A simple statement asserting that the requisite family relationship exists is all that is needed in situations such as in loco parentis where there is no legal or biological relationship." However, the letter also states, "It is the Administrator’s interpretation that the 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."
The letter specifically mentions its application to unmarried partners and same-sex partners. The fact that the child has a biological parent at home or has both a mother and a father does not prevent a finding that an employee with a non-biological relationship is eligible for FMLA leave. The letter clearly states that, "Neither the statute nor the regulations restrict the number of parents a child may have under the FMLA."
Note: Nothing in this interpretation is intended to change the existing size limitations (50 or more employees) for the application of the FMLA’s requirements, and this clarification is intended to cover both public and private employers.
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