DOL Wage and Hour Division Clarifies the Application of FMLA Definition of Son or Daughter to Cover Children of Same Sex Couples (Among Others)


Recently, the Department of Labor’s Wage and Hour Division, responsible for enforcing the FMLA, issued an Administrator’s Interpretation (IA 010-3, June 22, 2010), which clarifies that FMLA leave to care for a child is available to gay and lesbian couples as well as others who may not have biological or legal connection to the child.

The FMLA entitles an eligible employee to take up to 12 weeks of leave, in relevant part, “[b]ecause of the birth of a son or daughter of the employee and in order to care for such son or daughter,” “[b]ecause of the placement of a son or daughter with the employee for adoption or foster care,” and 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.”

In reaching its position on who is a “son or daughter,” the Interpretation specifically notes that Congress intended the definition of “son or daughter” to reflect the reality that many children in the United States today do not live in traditional nuclear families with their biological father and mother. The Senate Report quoted in the Interpretation states that the definition of “son or daughter” was intended to ensure that an employee who actually has day-to-day responsibility for caring for a child is entitled to [FMLA] leave.

Among those who are defined as a “son or daughter” in the statute is a child of a person who stands “in loco parentis” vis-à-vis the child.

According to the Administrator, “[i]n loco parentis is commonly understood to refer to a person who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to legal adoption.”

The FMLA regulations define in loco parentis as including those with day-to-day responsibilities to “care for and financially support a child”(emphasis added). 29 C.F.R. section 825.122(c)(3). The Administrator has determined that the regulations do not require an employee who intends to assume the responsibilities of a parent to establish that he or she provides both day-to-day care and financial support in order to be found to stand in loco parentis to a child. The Administrator places emphasis on the employee’s intent.

While some will support the Interpretation as a commendable effort to clearly establish that same sex couples have rights to care for their child even if the child is not a biological or adopted child or where the employee is not responsible for financial support, others will question several things about the Interpretation. First and foremost, if the published regulations say that the employee must both care for and financially support a child, how will an Interpretation that simply changes the regulatory “and” to “or” withstand a challenge? Secondly, is a standard that depends on the particular facts too subjective? While trying to further clarify the law, is the new Interpretation too loose? Will it open up the FMLA to too many challenges by both employees and employers thereby clogging the FMLA enforcement system and potentially clogging the courts or will employers and employees apply the Interpretation to further the stated Congressional intent without abuse on either side?