July 12, 2010

FMLA Broadened for Parents

The Family and Medical Leave Act was enacted in 1993 to provide time off and job protection in the event that an employee has a serious health condition, or to attend to a serious health condition of a family member, defined as a spouse, parent, son or daughter, as well as for the birth or adoption of a child.  The law applies to employers employing 50 or more employees.

Recently, the Department of Labor has issued an Administrator’s Interpretation (No. 2010-3) relating to the definition of son or daughter for FMLA purposes. Specifically, the Interpretation addresses who can take leave for the birth or adoption of a child or to care for a child with a serious health condition.

Generally, the FMLA defines child as a biological or adopted child, a foster child, a stepchild, a legal ward, or a child for whom the employee stands in loco parentis. In loco parentis means in the place of a parent.

This interpretation clarifies that in loco parentis should be interpreted liberally in favor of the individual who cares for the child. It is not necessary that there be a legal relationship between the employee and the child, nor is there a requirement that the individual provide both financial and day-to-day support. The interpretation makes it very clear that the facts and circumstances govern the relationship.

This liberal definition of in loco parentis is particularly useful in several situations. This interpretation allows domestic partners, grandparents, aunts and uncles or others who can prove care giving responsibilities for a child to be able to take time off under the FMLA in the event of birth, adoption, or the serious health condition of a child.

The interpretation makes it clear that there is no limit on the number of "parents" that a child may have. The interpretation includes the following example: If two parents divorce and each parent remarries, all four individuals may meet the "in loco parentis" definition and may be entitled to take leave, as long as each can show care giving responsibility for the child.

The interpretation provides that, if an employer questions the relationship between the employee and the child, the employer can request a simple statement from the employee asserting the relationship.

This provides important guidance to employers as it relates to FMLA entitlement. Since the determination will be very fact and circumstance driven it may well result in some complexities.


The information contained in this Benefit Beat is not intended to be legal, accounting, or other professional advice, nor are these comments directed to specific situations.

As required by U.S. Treasury rules, we inform you that, unless expressly stated otherwise, any U.S. federal tax advice contained in this Benefit Beat is not intended or written to be used, and cannot be used, by any person for the purpose of avoiding any penalties that may be imposed by the Internal Revenue Service.

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