The Administrator has determined that additional
clarification is needed on the definition of son or daughter as it applies to
an employee taking FMLA-protected 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. Based on the Wage and Hour Division's experience in
administering the FMLA, it is evident that many employees and employers are
unsure of how the FMLA applies when there is no legal or biological
parent-child relationship. The Administrator is issuing this interpretation to
provide needed guidance on this important area of law.
Background
The FMLA entitles an eligible employee to take up to 12 workweeks
of job-protected leave, in relevant part, [b]ecause of the birth of a son or
daughter of the employee and in order to care for such son or daughter,[b]ecause
of the placement of a son or daughter with the employee for adoption or foster
care, and to care for a son or daughter with a serious health condition. See
29 U.S.C. 2612(a)(1)(A) - (C); 29 C.F.R. 825.200. 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. 29 U.S.C. 2611(12). See also 29 C.F.R. 825.122(c), 825.800.[1]
The Wage and Hour Division has received several requests for
additional guidance regarding whether employees who do not have a biological or
legal relationship with a child may take FMLA leave for birth, bonding, and to
care for the child.
In Loco Parentis
The FMLA entitles an employee to 12 workweeks of leave for
the birth or placement of a son or daughter, to bond with a newborn or newly
placed son or daughter, or to care for a son or daughter with a serious health
condition. 29 U.S.C. 2612(a)(1)(A) - (C). The definition of son or
daughter under the FMLA includes not only a biological or adopted child, but
also a foster child, a stepchild, a legal ward, or a child of a person
standing in loco parentis. 29 U.S.C. 2611(12). See also 29
C.F.R. ?? 825.122(c), 825.800.
Congress intended the definition of son or daughter to reflect the reality that many children in the United States today do not live in
traditional nuclear families with their biological father and mother.
Increasingly, those who find themselves in need of workplace accommodation of
their child care responsibilities are not the biological parent of the children
they care for, but their adoptive, step, or foster parents, their guardians, or
sometimes simply their grandparents or other relatives or adults. See
S. Rep. No. 103-3, at 22. Congress stated that the definition was intended to
be ?construed to ensure that an employee who actually has day-to-day
responsibility for caring for a child is entitled to leave
even if the employee does not have a biological or legal relationship to that
child. Id.
In loco parentis is commonly understood to refer to 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. Niewiadomski v.
U.S., 159 F.2d 683, 686 (6th Cir. 1947) (quotations omitted). Black's
Law Dictionary defines the term in loco parentis as in the place of a
parent. Black's Law Dictionary 803 (8th ed. 2004). ?The key in
determining whether the relationship of in loco parentis is established is
found in the intention of the person allegedly in loco parentis to
assume the status of a parent toward the child. The intent to assume such
parental status can be inferred from the acts of the parties. Dillon
v. Maryland-National Capital Park and Planning Comm'n, 382 F. Supp. 2d 777,
787 (D. Md. 2005), affd 258 Fed. Appx. 577 (4th Cir. 2007) (citations
omitted; emphasis in original).
Whether an employee stands in loco parentis to a child is a
fact issue dependent on multiple factors. Megonnell v. Infotech Solutions,
Inc., 2009 WL 3857451, *9 (M.D. Pa. 2009). Courts have enumerated factors
to be considered in determining in loco parentis status; these factors include the
age of the child; the degree to which the child is dependent on the person
claiming to be standing in loco parentis; the amount of support, if any,
provided; and the extent to which duties commonly associated with parenthood
are exercised. Dillon, 382 F. Supp. 2d 777, 786 -787 (D. Md. 2005).
[2]?
The FMLA regulations define in loco parentis as including
those with day-to-day responsibilities to care for and financially support a
child.? 29 C.F.R. ? 825.122(c)(3).? 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.? Id.? 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.? For example, where an employee provides day-to-day care
for his or her unmarried partner?s child (with whom there is no legal or
biological relationship) but does not financially support the child, the
employee could be considered to stand in loco parentis to the child and therefore
be entitled to FMLA leave to care for the child if the child had a serious
health condition.? The same principles apply to leave for the birth of a child
and to bond with a child within the first 12 months following birth or placement.?
For instance, an employee who will share equally in the raising of a child with
the child?s biological parent would be entitled to leave for the child?s birth
because he or she will stand in loco parentis to the child.? Similarly, an
employee who will share equally in the raising of an adopted child with a same
sex partner, but who does not have a legal relationship with the child, would
be entitled to leave to bond with the child following placement, or to care for
the child if the child had a serious health condition, because the employee
stands in loco parentis to the child.
It should be noted that the fact that a child has a
biological parent in the home, or has both a mother and a father, does not
prevent a finding that the child is the ?son or daughter? of an employee who
lacks a biological or legal relationship with the child for purposes of taking
FMLA leave.? Neither the statute nor the regulations restrict the number of
parents a child may have under the FMLA.? For example, where a child?s biological
parents divorce, and each parent remarries, the child will be the ?son or
daughter? of both the biological parents and the stepparents and all four
adults would have equal rights to take FMLA leave to care for the child.? Where
an employer has questions about whether an employee?s relationship to a child
is covered under FMLA, the employer may require the employee to provide
reasonable documentation or statement of the 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.? See 29 C.F.R. ? 825.122(j); 73 Fed. Reg.
67,952 (Nov. 17, 2008).
Examples of situations in which an in loco parentis relationship
may be found include where a grandparent takes in a grandchild and assumes
ongoing responsibility for raising the child because the parents are incapable
of providing care, or where an aunt assumes responsibility for raising a child
after the death of the child?s parents.? Such situations may, or may not,
ultimately lead to a legal relationship with the child (adoption or legal
ward), but no such relationship is required to find in loco parentis status.?
In contrast, an employee who cares for a child while the child?s parents are on
vacation would not be considered to be in loco parentis to the child.
Conclusion
Based upon a thorough examination of the relevant factors,
it is the Administrator?s interpretation that either day-to-day care or financial
support may establish an in loco parentis relationship where the employee
intends to assume the responsibilities of a parent with regard to a child.? In
all cases, whether an employee stands in loco parentis to a child will depend
on the particular facts.
[2]
There is no specific set of factors that, if present, will be considered to be
dispositive in determining in loco parentis status.?
See e.g., Martin
v. Brevard County Public Schools, 543 F.3d 1261 (11th Cir. 2008) (fact
issue whether employee stood ?in loco parentis? to his granddaughter, though the
employee provided financial support, shelter, food and health insurance);
Dillon,
382 F. Supp. 2d at 787 (genuine issue of material fact as to whether
grandmother stood
in loco parentis to employee, although grandmother had
provided a home and financial support);
Brehmer v. Xcel Energy, Inc.,
No. 06-3294, 2008 WL 3166265, at *7 (D. Minn. 2008) (finding genuine issue of
material fact on
in loco parentis issue where employee helped his
girlfriend's son eat, dress, get ready for bed, took child to doctor
appointments and to school, went to child's softball games, and contributed
more than half of child's financial support).