Q. An employee has requested-protected leave to care for his partner’s son. We are aware that the child is not legally or biologically related to our employee. Do we have to grant the protected leave?
A. Most likely, yes. The child is probably covered under the FMLA’s definition of “son or daughter,” in which case the employee would be entitled to the protected leave. The definition of “son or daughter” in the FMLA is not limited to legal or biological children. It also includes a “child of a person standing in loco parentis.”
The Wage and Hour Division of the Department of Labor has taken the position that any employee who shares equally in the day-to-day care or financial support of a child will be considered in loco parentis. A stepparent, the same-sex partner of a parent or even a grandparent who steps in and assumes the ongoing responsibility of raising a child would all be covered under the FMLA.
The FMLA does not, however, extend to an employee who merely cares for a child on a short-term basis while the parents go on vacation.
The existence of a biological parent either in or outside the home does not prevent an employee who is not a biological parent from being considered in loco parentis. This means that if a child’s biological parents divorce, both of their new partners or spouses could be considered in loco parentis.
If you are uncertain about the nature of your employee’s relationship with the child, you can ask for documentation of the family relationship. A simple statement from the employee asserting that the relationship exists will, however, be sufficient to prove in loco parentis in the absence of a legal or biological relationship.
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