Defining "Son or Daughter" Under the FMLA
The Wage and Hour Division of the United States Department of Labor (the "WHD") recently issued an advisory clarifying the definition of "son or daughter" under the Family Medical Leave Act ("FMLA").
Under the FMLA, eligible employees are entitled to take FMLA-protected leave for the birth or placement of a son or daughter, to care for a newborn or newly placed son or daughter, or to care for a son or daughter with a serious health condition. 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." The FMLA regulations define "in loco parentis" as including individuals with day-to-day responsibilities to care for and financially support a child. Thus, employees who have no biological or legal relationship with a child may nonetheless stand in "loco parentis" to the child and be entitled to FMLA leave.
The WHD's advisory makes it clear that it is not necessary for one claiming to stand "in loco parentis" to a child to establish both day-to-day care and financial support. Moreover, there is no limit on the number of parents a child may have under the FMLA. For instance, where a child's biological parents divorce, and each parent remarries, the child may be considered the "son or daughter" of both the biological parents and the stepparents, thus entitling all four individuals to take FMLA leave care for the child. Also, the fact that a child has a biological parent in the home, or has both a mother and 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 the purposes of taking FMLA leave.
