|
|
|
|
|
Employment Law
Alert September 29, 2010
|
|
|
Labor and Employment Practice
Group Leaders
|
|
|
|
Practice Group
Jennifer S. Buckley
Anne-Marie Vercruysse
Welch
|
|
|
|
|
Employment Law
Alert
Wage and Hour
Administrator Clarifies the Definition of "son or daughter"
under the FMLA
by
Anne-Marie V. Welch
Many employers
often question how the Family and Medical Leave Act ("FMLA") applies when there is no legal or
biological parent-child relationship between the child and the
employee who seeks to take FMLA leave to
care for the child.
The Family and Medical Leave Act entitles an eligible employee to
take up to 12 workweeks of job-protected leave "[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 of physical
disability." 29 U.S.C. §
2611(12). See also 29 C.F.R.
§§825.112(c), 825.800.
On June 22, 2010 the Wage and Hour Division issued an Administrator's
Interpretation to clarify the definition of "son or
daughter" under the FMLA.
Notably, this clarification does not address an employee's
entitlement to take military FMLA leave for
a son or daughter, which is determined by separate definitions.
See 29 C.F.R. § 825.122(g), (h).
The Administrator emphasized that "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.'" See S. Rep.
No. 103-3, at 22. Accordingly, the FMLA
regulations provide for leave when an employee stands in loco
parentis to a child; i.e., when the employee has day-to-day
responsibilities to care for and financially support a child.
29 C.F.R. § 825.122(c)(3).
To that end, "[i]t 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." (emphasis added).
The
Administrator also noted that neither the Act nor its regulations
restrict the number of parents a child may have under the FMLA. Therefore, the Administrator
explained 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."
According to the Administrator, examples of situations in which an in
loco parentis relationship may be found and FMLA
leave may be granted include:
- where an employee who will share
equally in the raising of a child with the child's biological
parent, the employee would be entitled to leave for the child's
birth;
- 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 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, the
employee 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;
- 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;
- where a grandparent takes in a
grandchild and assumes ongoing responsibility for raising the
child because the parents are incapable of providing care; and
- where an aunt assumes responsibility
for raising a child after the death of the child's parents.
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.
Employers are permitted to require employees seeking to take leave to
care for a child to provide reasonable documentation or statement of
the family relationship. To be considered in loco parentis
where there is no legal or biological relationship between the
employee and the child, all that is required of an employee is a
simple statement asserting that the requisite family relationship
exists. See 29 C.F.R. § 825.122(j);
73 Fed. Reg. 67,952 (Nov. 17, 2008).
Employers with questions regarding the definition of in loco parentis
under the FMLA may contact Anne-Marie Vercruysse Welch, awelch@clarkhill.com, 313.965.8571,
or any of the attorneys in Clark Hill's Labor and Employment law
group.
|
|
|
|
|
To find out
more about Clark Hill and our Labor and Employment Practice Group,
visit clarkhill.com
or call 800.949.3124
|
|
|
