USDOL Expands Definition Of Parent Under The FMLA
Charlotte, NC, June 28, 2010.
According to a recent interpretive release from the US Department of Labor, employees may be entitled to take FMLA leave for matters relating to children even if they have no biological or legal relationship to the children. The Family and Medical Leave Act (FMLA) entitles certain employees to take up to 12 weeks of unpaid leave for, among other things, 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. This right extends to an employees biological, adopted, step, and foster children, and for legal wards, and also for an employee standing in loco parentis to a child under 18 years old or over 18 but incapable of self-care because of a mental or physical disability.
The new interpretation gives guidance on the USDOL's view of the "in loco parentis" provision. It opines that an employee may be considered in loco parentis if the employee intends to assume the status of a parent toward the child, regardless of whether a legally recognized relationship (such as guardian or adoptive parent) exists. There is no bright line test that employers can use to determine if someone satisfies this definition, but the interpretation suggests that some factors that may be taken into account 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 provided, and the extent to which duties commonly associated with parenthood are exercised. However, it is not required that the employee provide both day-to-day care and financial support (for example, someone who cares for the child of their unmarried partner, including in same-sex relationships, or a grandparent who provides daycare, might qualify). In the case of birth, adoption, or foster care, employees may be considered in loco parentis because of the role they intend to play in the child's life in the future, for instance, if it is anticipated that they will be a primary caregiver. Importantly, the USDOL says there is no restriction on the number of parents a child may have under the FMLA.
Unfortunately this guidance raises far more questions than it answers. As just one example, would a person who provides care one day a week every week have a sufficient relationship to be entitled to take leave? Two days? Three? Complicating matters yet more, the interpretation says that employers may require employees 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 . . ." It is not clear, however, how "simple" such a statement can be to be sufficient, or to what extent an employer may be entitled to inquire further. Importantly, the interpretation does not address an employee's entitlement to take military FMLA leave for a son or daughter (suggesting guidance on that topic may be forthcoming).
Employers covered by the FMLA should amend their FMLA policies to reflect this important and expansive interpretation, and supervisors responsible for handling leave requests should become familiar with it. Most importantly, if an employee covered by the FMLA asks for time off for a matter concerning a child, the employer cannot simply dismiss the request because the employee has no legal or biological relationship to the child. It would be prudent to consult with a knowledgeable legal or HR professional when handling such requests.
To learn how SOI can help your business comply with employment laws and institute best practices, contact Eldridge Bravo at (888) 295-6957 ex 6329 or worksmarter@soi.com.
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