FMLA Changes Son/Daughter Definition

An Administrator's Interpretation Letter on June 22, 2010 from the Department of Labor has clarified the definition of son or daughter as it applies to an employee taking FMLA leave to care for a newborn, newly placed or sick child. Using the portion of FMLA referring to the term "in loco parentis," the DOL's letter states that one does not have to have a biological or legal relationship with the child to be able to take FMLA leave. One must look at factors like the age of the child, the degree to which the child is dependent on the person providing care, the amount of support provided and the extent to which duties commonly associated with parenthood are exercised.

The letter specifically refers to an employee caring for his or her unmarried partner's child, as well as a grandparent, aunt or uncle, as examples of those who could stand "in loco parentis," and also says that an employee must only provide "a simple statement asserting that the requisite family relationship exists" in order to support a request for leave. Employers who have questions about challenging a request for FMLA leave under these circumstances are urged to contact the lawyers of the Roetzel & Andress Labor and Employment Group if there are any questions.

Author: Doug Kennedy

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