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FMLA Definition of "Son and Daughter" Clarified by the U.S. Department of Labor

June 30, 2010

Last week the U.S. Department of Labor (DOL) clarified the definition of "son and daughter" under the Family and Medical Leave Act (FMLA) to ensure that an employee who assumes the role of caring for a child receives parental rights to family leave regardless of the legal or biological relationship to the child

The FMLA allows a worker to take up to 12 weeks of unpaid leave during any 12-month period for the birth and care of a newborn child, to adopt or assume care for a foster child, to care for an immediate family member (spouse, child or parent) with a serious health condition, or to take care of the worker's own serious health condition. An administrative interpretation (Administrator's Interpretation No. 2010-3), issued by the DOL's Wage and Hour Division, clarifies that these rights extend to the situation in which a worker stands "in loco parentis" to a child; in other words, when the worker has put himself or herself in the situation of a lawful parent by assuming the obligations incident to the parental relationship without going through any legal formalities.

DOL practical examples include (assuming other eligibility factors are met):
  • An employee who intends to share in the parenting of a child with his or her same sex partner will be able to exercise the right to FMLA leave to bond with that child.
  • An uncle who is caring for his young niece and nephew because their single parent has been called to active military duty may exercise FMLA leave.
  • A grandmother who assumes responsibility for her sick grandchild when her own child is debilitated will be able to seek FMLA leave from her employer.
As the interpretation makes clear, FMLA leave for the care of a child can extend to more individuals than just legal or biological parents.

See link to Administrator's Interpretation No. 2010-3 below.

Related Links

Administrator's Interpretation No. 2010-3

Related Practices