FMLA and In Loco Parentis
Question: One of our employees has requested FMLA leave to care for a child with a serious health condition that he is not the biological father of, but whom he has taken an active role in raising. All other requirements for eligibility for FMLA leave have been met but because this employee is not the child's biological parent and there is no legal parent-child relationship between him and the child (he has not legally adopted the child, though he has been raising him) we are uncertain whether the law requires us to grant him the requested FMLA leave. Does it?
Answer: Yes, you should grant this employee's request for FMLA leave. The FMLA leave provisions extend not only a child's biological or adoptive parent, but also to "a person standing in loco parentis" to a child. 29 U.S.C.A. § 2611(12). The statute's term "in loco parentis" refers to someone who has no legal relationship to the child but assumes and fulfills parental obligations. A person that discharges the day-to-day responsibilities of a parent to a child may be entitled to leave to care for that child under the FMLA.
Courts have understood that intent to assume the parental role is the key to establishing whether a relationship qualifies as in loco parentis. Courts infer the existence of this intent by examining the parties' conduct. Factors courts will consider include:
(1) the child's age;
(2) the child's dependency on the person claiming to be standing in loco parentis;
(3) level of financial support; and
(4) the extent to which duties commonly associated with parenthood are exercised.
See Dillon v. Maryland-National Capital Park and Planning Comm'n, 382 F. Supp. 2d 777, 787 (D. Md. 2005).
According to FMLA regulations, in loco parentis includes "those with day-to-day responsibilities to care for and financially support a child." The Department of Labor clarified that the regulations do not require an individual to provide both day-to-day responsibilities and financial support. 29 C.F.R. § 825.122(c)(3). Simply providing for the child's day-to-day needs can be sufficient to qualify someone as standing in loco parentis. Department of Labor, Wage & Hour Division, Administrator's Interpretation No. 2010-3 (June 22, 2010).
The DOL additionally explained that the fact that a child with a biological parent in the home does not prevent another adult from standing in loco parentis to that child. Additionally, an individual might be entitled to leave even if the child has both a mother and father living. Nothing in the statute or the regulations limits the number of parents a child may have under the FMLA. If, for example, a child's parent's divorce and remarry, both the parents and step-parents all could potentially qualify for FMLA leave.
According to the DOL, examples of relationships qualifying as in loco parentis include:
* A grandfather taking leave to care for a seriously ill grandchild for whom he has assumed ongoing responsibility.
* A co-parent of a same-sex partner's biological child may take leave for the birth and for bonding.
If the employer questions whether the employee's relationship with the child qualifies as in loco parentis, the employer can demand the appropriate documentation or a statement describing the relationship. However, the DOL implies that the employee's burden is particularly light, requiring only a "simple statement asserting that the requisite family relationship exists." DOL Interpretation; see 29 C.F.R. § 825.122(j). In fact, the DOL rejected proposals that would have heightened the evidentiary burden on the employee by requiring a tax return or a notarized statement. 73 Fed. Reg. 67,952 (Nov. 17, 2008).
Courts will examine each case's particular facts to determine if the relationship qualifies as in loco parentis. As a general rule though, the more day-to-day and financial responsibility a person takes for the child, the more likely he or she qualifies for leave under the FMLA.
Keisha-Ann G. Gray is senior counsel in the labor and employment law department of Proskauer in New York and co-chair of the department's employment litigation and arbitration practice group. Proskauer Associate Aaron Feuer assisted with this article.