In an Opinion Letter  issued on June 22, 2010, the U.S. Department of Labor clarified who may be a parent under the Family and Medical Leave Act, including same-sex domestic partners who stand in loco parentis to a child.

The DOL stated that, in the FMLA’s definition of "son" or "daughter," the in loco parentis provision would allow domestic partners to take leave in the case of birth, adoption or placement of a new child, or to care for a child with a serious health condition.

The DOL reaffirmed its position that, under the regulations, the only documentation an employer may require to prove in loco parentis status is a "simple statement" asserting that the requisite family relationship exists. This issue was discussed in 2008 when the FMLA regulations were amended, at which time the DOL rejected employers’ suggestion that additional documentation be allowed, including tax returns demonstrating financial dependence.

The regulations define "son" or "daughter" to include children for whom an employee stands in loco parentis. In its Opinion Letter, the DOL interpreted this provision broadly, acknowledging that 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." The DOL concluded that either day-to-day care or financial support may establish the in loco parentis relationship when an employee intends to assume parental responsibilities. It is not necessary, according to the DOL, that both factors be present.

Under the DOL’s broad interpretation , the FMLA does not limit the number of parents a child may have. For example, a child whose divorced parents each remarries could mean that the child now has four parents. Such relationships, whether biological or legal or neither, may entitle employees to FMLA leave. In particular, same-sex partners may care for a child if they otherwise stand in loco parentis.

Employers should review their FMLA policies to determine if modification is warranted, including, specifically, the portion of the policy defining qualifying family members for purposes of leave entitlement. If you have any questions about this new development or would like our assistance in updating your policy, please contact Brian D. Pedrow, at 215.864.8108 or pedrow@ballardspahr.com, or any member of Ballard Spahr’s Labor and Employment Group.


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