On June 22, 2010, the U.S. Department of Labor (“DOL”) clarified the Family and Medical Leave Act definition of “son and daughter.” Specifically, the DOL interpretation clarifies that an individual who assumes the role of caring for a child is entitled to parental rights to family leave regardless of the legal or biological relationship. Furthermore, such an individual is not required to establish that he or she provides both day-to-day care and financial support to the child.

The FMLA entitles an employee to 12 work weeks of leave for the birth or placement of a son or daughter, to bond with a newborn or newly placed son or daughter, or to care for a son or daughter with a serious health condition. 29 U.S.C. § 2612(a)(1)(A) – (C). The definition of “son or daughter” under the FMLA includes not only a biological or adopted child, but also a “foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.” 29 U.S.C. § 2611(12). See also 29 C.F.R. §§ 825.122(c), 825.800. Where an employer has questions about whether an employee’s relationship to a child is covered under FMLA, the employer may require the employee to provide reasonable documentation or statement of the family relationship. A simple statement asserting that the requisite family relationship exists is all that is needed in situations such as in loco parentis where there is no legal or biological relationship. See 29 C.F.R. § 825.122(j); 73 Fed. Reg. 67,952 (Nov. 17, 2008).

For employment-related questions, please contact Heather Gwinn or call 303-443-8010.