In a victory for non-traditional families, the Department of Labor, Wage and Hour Division has recently issued a clarification of what the terms “son” and “daughter” mean with the effect of broadening who is entitled to leave under the Family and Medical Leave Act (FMLA).
Under the FMLA, an employee is entitled to 12 weeks 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. The FMLA’s definition of “son or daughter” includes not only a biological or adopted child, but also a foster child, a step-child, a legal ward, or a child of a person standing in loco parentis.
Pursuant to the recent clarification, anyone who assumes the role of caring for a child regardless of the legal or biological relationship may be considered as acting “in loco parentis,” and entitled to leave. This includes same sex partners, unmarried partners, grandparents and extended family members.
In reaching this determination, the DOL reasoned that it was Congress’ intention to grant leave to employees who have day-to-day responsibilities caring for a child even if the employee does not have a biological or legal relationship to that child.
The DOL also relied on case law that provides a variety of factors used to determine whether an employee stands in loco parentis, including:
• Age of child • Degree child is dependent on person claiming in loco parentis status • Amount of financial support • The extent duties associated with parenthood are exercised
Labor Secretary Hilda Solis stated “No one who loves and nurtures and child day-in and day-out should be unable to care for that child when he or she falls ill…No one who intends to raise a child should be denied the opportunity to be present when that child is born simply because the state or an employer fails to recognize his or her relationship with the biological parent.”
Whether an adult stands in loco parentis to a child depends on the facts of each case. If you have taken on the responsibilities of raising a child – whether you have a biological or legal relationship or not – you may be protected by the FMLA and entitled to leave.
For more information, please contact Buckley Bala Wilson Mew LLP, a Georgia law firm committed to employee’s rights.