The Family and Medical Leave Act (FMLA) establishes protected leave for specific circumstances, including the birth or placement of a son or daughter, care of a newborn or newly placed son or daughter, and care for a son or daughter with a serious health condition. On June 22, 2010, the Wage and Hour Division of the Department of Labor issued Administrator’s Interpretation No. 2010-3 in response to requests for guidance regarding whether employees who do not have a biological or legal relationship with a child may take FMLA leave for birth, bonding, and to care for the child.

Under the FMLA, the definition of “son or daughter” includes not only a biological or adopted child, but also a “foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.” According to the DOL, Congress intended the definition of “son or daughter” to “reflect the reality that many children in the United States today do not live in traditional ‘nuclear’ families with their biological father and mother.” One purpose of the FMLA is to ensure that an employee who has actual day-to-day child-care responsibilities is entitled to leave, even if that employee has no biological or legal relationship to the child.

The regulations associated with the FMLA define in loco parentis to include individuals with day-to-day responsibilities to care for and financially support a child. Whether an employee stands in loco parentis to a child is a fact issue dependent upon the specifics of the relationship and – according to the DOL – depends upon a variety of factors, including the age of the child, the amount of support provided, and the extent to which duties commonly associated with parenting are present. The DOL’s guidance goes one step further, and states 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.” Therefore, an employee who provides day-to-day care for an unmarried partner’s child or a spouse’s child from a previous marriage, but does not financially support that child, may still be entitled to FMLA leave to care for the child should that child develop a serious health condition. Further, an employee who will share equally in child care responsibilities with a same sex partner would be entitled to FMLA leave for the birth or placement of that child, even without a biological or specific legal relationship with that child.

The DOL points out that “Neither the [FMLA] nor the regulations restrict the number of parents a child may have under the FMLA.” Therefore, the fact that a child has two biological parents does not prevent a finding that the same child is a “son or daughter” of an employee who provides day-to-day care or financial support to the child. For example, if the biological parents of a child divorce and remarry, it is possible (under the interpretation of the FMLA set forth in the DOL’s opinion letter) that there may be four individuals who may have equal rights to FMLA leave, should the child become seriously ill.

Employers should recognize that no specific legal relationship is required to establish in loco parentis status. However, there are limitations on this designation. For instance, an employee who cares for a child (even on a day-to-day basis) while the child’s parents are vacationing would not be considered to be acting in loco parentis to that child. However, if an employee intends to assume financial or day-to-day parental responsibility for a child on some continuing basis, and requests FMLA leave for that child’s care, the employer should look carefully at the facts before assuming that the employee is not entitled to such leave.