Does the FMLA apply when an employee has to care for a child she isn’t related to? — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily

Does the FMLA apply when an employee has to care for a child she isn’t related to?

by on
in FMLA Guidelines,Human Resources

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 FMLA. 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 for FMLA leave by 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.

Leave a Comment