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FMLA Now Applies to Employees Who Care for a Child, Regardless of Legal or Biological Relationship

June 24, 2010

The U.S. Department of Labor has clarified the definition of "son or daughter" under the Family and Medical Leave Act (FMLA) to extend family leave rights to all employees who have the day-to-day responsibility of caring for a child, regardless of their legal or biological relationship with the child. Thus, more caregivers – such as grandparents and domestic partners – may now qualify for FMLA leave.

The FMLA entitles an eligible employee to take up to 12 workweeks of job-protected leave for, among other reasons, care of a "son or daughter" following the child's birth; the placement of a "son or daughter" with the employee for adoption or foster care; or care of a "son or daughter" with a serious health condition. The FMLA defines a "son or daughter" to mean a "biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis."

In an Administrator's Interpretation issued June 22, 2010, the DOL discussed the meaning of the term "in loco parentis." Noting that Congress intended the FMLA 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," the Department commented that the definition of "son or daughter" 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 the child." Thus, the DOL concluded, the right to FMLA leave may extend to grandparents who assume ongoing responsibility for raising a child because the parents are incapable of doing so, an aunt who assumes responsibility for raising a child following the death of the child's parents, or an employee who shares equally in the raising of the biological or adopted child of the employee's same-sex partner.

The effect of the June 22 Administrator's Interpretation is that more caregivers – particularly non-traditional caregivers such as grandparents, extended family, and domestic partners – will now likely qualify for leave under the FMLA.

In light of this development, employers who are subject to the FMLA should review their FMLA policies to ensure such policies cover these non-traditional scenarios. Where an employer questions whether an employee's relationship to a child is covered by the FMLA, the employer may require that the employee provide reasonable documentation or a statement of the family relationship.

Varnum attorneys Beth Skaggs (616-336-6620) and Jeff Fraser (616-336-6624) are ready to assist with such reviews and documentation requirements, or answer any labor and employment questions you may have. Please contact either Beth or Jeff.

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