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The U.S. Department of Labor recently issued an Administrator's Interpretation that expands employees’ entitlement to leave under the Family and Medical Leave Act (“FMLA”).  The FMLA grants up to 12 weeks of job-protected unpaid leave per 12-month period to certain employees in companies that have 50 or more employees working within a 75-mile radius of the work site.  Under Administrator’s Interpretation No. 2010-3, covered employees eligible for leave under the FMLA now include those employees who assume the role of caring for a child, even if no legal or biological relationship exists between the employee and the child. 

The interpretation, made for the purpose of clarifying the term “son or daughter” under the FMLA, came after what the DOL called “several requests for additional guidance” to the Wage and Hour Division as to whether an employees without a biological or legal relationship with a child may take FMLA leave for birth, bonding, or to care for the child.  In answering the question affirmatively, the DOL attempted to clarify the circumstances that should be considered when determining whether an employee stands in the position of a parent, otherwise known as “in loco parentis.”  The interpretation makes clear that, for the purposes of the FMLA, even the existence of a biological parent in the child’s home will not prevent a finding that the child is still the son or daughter of an employee who has no biological or legal relationship with the child, if the employee intends to assume the responsibilities of a parent. 

The DOL stated “It 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.”  The full text of Administrator’s Interpretation No. 2010-3 is available at http://www.dol.gov/whd/opinion/adminIntrprtn/FMLA/2010/FMLAAI2010_3.htm.