The DOL just issued an Administrator Interpretation clarifying the definition of “son or daughter” under Section 101(12) of the FMLA with respect to employees who stand “in loco parentis” to a child. According to the Interpretation, while the question of whether an individual stands in loco parentis to a child will depend on the particular facts in each case, “either day-to-day care or financial support may establish an in loco parentis relationship where the employee intends to assume the responsibilities of a parent with regard to a child.”

The accompanying press release makes it clear that DOL views the new Interpretation as expanding the FMLA rights of employees who care for a non-biological child:

As the interpretation makes clear, an uncle who is caring for his young niece and nephew when their single parent has been called to active military duty may exercise his right to family leave. Likewise, a grandmother who assumes responsibility for her sick grandchild when her own child is debilitated will be able to seek family and medical leave from her employer. And an employee who intends to share in the parenting of a child with his or her same sex partner will be able to exercise the right to FMLA leave to bond with that child.

Employers should review their FMLA practices and train managers and supervisors who are responsible for approving FMLA leave to ensure that they are appropriately handling leave requests by individuals claiming an in loco parentis relationship with a non-biological child.

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Photo of Justin F. Keith Justin F. Keith

Justin helps unionized businesses maintain successful labor relations and helps non-union companies maintain direct relationships with their employees through education, training, and proactive union awareness. His labor practice encompasses all aspects of labor relations, including unfair labor practices, representation proceedings before the National

Justin helps unionized businesses maintain successful labor relations and helps non-union companies maintain direct relationships with their employees through education, training, and proactive union awareness. His labor practice encompasses all aspects of labor relations, including unfair labor practices, representation proceedings before the National Labor Relations Board and Courts of Appeal, contract negotiations, strikes and lockouts, grievances, and arbitrations. Justin also represents employers in all areas of employment law—including reductions in force, litigation of discrimination, harassment, whistleblower, and retaliation claims, and numerous other personnel and workplace issues—before state and federal agencies and in courts throughout the country.

Justin Co-Chairs the firm’s Labor & Employment Practice’s Labor-Management Relations group and advises clients in all areas of traditional labor law, including union organizing campaigns, collective bargaining negotiations, unfair labor practice charges and representation case proceedings before the NLRB, union awareness strategy and training, strike response and contingency planning, grievance arbitration proceedings, and appellate litigation before the NLRB and the Courts of Appeals. Justin was co-counsel to New Process Steel in the landmark Supreme Court case, New Process Steel v. NLRB, 560 U.S. 674 (2010). He is also a contributing editor of The Developing Labor Law, the leading treatise on U.S. labor law, and a frequent speaker to legal and industry groups on labor and employment issues.

Justin has litigated dozens of wage and hour class actions brought under the Massachusetts Wage Act and nationwide collective actions under the Fair Labor Standards Act. He represents employers across a broad spectrum of industries, including retail, transportation, delivery services, and telecom services in nationwide class and collective actions brought throughout the country.

Justin regularly provides counsel to senior management and human resource personnel on employment law compliance matters, such as reductions in force, leaves of absence, exempt status classification under the FLSA and state law, employee discipline, sexual