Q. We have an employee who cares for a child but does not have a legal or biological relationship to the child. The employee wants to take a child-related leave under the. Is she eligible?
A. Maybe. The FMLA allows an employee to take leave because of the birth of a son or daughter, the placement of a son or daughter for adoption or foster care, or to care for a son or daughter with a serious health condition.
The FMLA defines a “son or daughter” as “a biological, adopted or foster child, a stepchild, a legal ward or a child of a person standing in loco parentis, who is (A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability.”
On June 22, 2010, the DOL issued an interpretation letter that expanded the definition of “son or daughter” to include a person without a legal or biological relationship to the child.
The DOL noted that Congress wanted the term “son or daughter” to be interpreted so that an employee who has assumed a parenting relationship can take leave from work to care for the child. Accordingly, a person who provides day-to-day care or who financially supports the child but does not have a biological or legal relationship with the child may qualify forby standing in loco parentis. The term applies when a person has put himself in the situation of a lawful parent by assuming parental obligations without legally adopting the child.
The employee’s intent to assume the status of a parent determines whether an employee is acting in loco parentis.