On June 22, 2010, the Wage and Hour Division of the U.S. Department of Labor issued a written interpretation of the Family and Medical Leave Act concerning whether employees who do not have a biological or legal relationship with a child may nevertheless take FMLA leave for the birth, adoption, or serious health condition of a child.  The DOL’s interpretation of the law is that such employees have the right to take FMLA for these reasons as long as they stand “in loco parentis” with the child.  The FMLA regulations define persons who are “in loco parentis” as including those “with day-to-day responsibilities to care for and financially support a child.”  “A biological or legal relationship is not necessary.”  29 C.F.R. §825.122(c)(3).

Despite the FMLA regulation’s clear requirement that being in loco parentis requires responsibilities both to care for and financially support a child, the DOL’s interpretation says that the DOL will not require employees to prove that they meet both requirements in order to be eligible for FMLA leave.  According to the DOL, it is sufficient if the employee “intends to assume the responsibilities of a parent.”  Thus, according to the DOL, “. . .where an employee provides day-to-day care for his or her unmarried partner’s child (with whom there is no legal or biological relationship) but does not financially support the child, the employee could be considered to stand in loco parentis to the child and therefore be entitled to FMLA leave to care for the child if the child had a serious health condition.”  Likewise, says the DOL, an employee who will share equally in the raising of an adopted child with a same-sex partner, but who does not have a legal relationship with the child would be entitled to leave to “bond with the child” following the adoption.  (Presumably the employee’s partner adopted the child but the employee did not, or else the employee would have a legal relationship with the child.)

What appears to matter most to the DOL are employees’ intentions.  The interpretation concludes that “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.”  In order to determine whether an employee has the requisite intention, an 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 . . .” 

The new interpretation raises a host of questions which it does not discuss.  Here are a few.

1.         There is no explanation of why the DOL believes that it is free to depart from its own regulation, which clearly says that being in loco parentis requires both caring for “and” financially supporting a child. 

2.         What constitutes an acceptable statement of “the requisite family relationship?” Would an employee’s request for FMLA leave to care for a sick child itself establish the requisite intention to assume the day-to-day responsibility to care for a child?

3.         What is a “family” relationship under this interpretation?  The interpretation says that in adopting the FMLA, Congress recognized that many children in the United States do not live in traditional nuclear families.  However, Congress did not completely abandon the traditional nuclear family, because unmarried couples are not considered spouses under the FMLA, and an unmarried employee, whether heterosexual or homosexual, may not take FMLA leave to care for his or her friend, partner, or lover who has a serious health condition.  It seems anomalous to interpret the law to allow unmarried employees to take FMLA leave to care for their friends’ children but not to care for their friends. 

4.         Since the employee need not be biologically related to the child, an employee whose live-in girlfriend bears another man’s child could be eligible for FMLA leave to care for the child.  But so could the biological father.  What if both “fathers” worked for the same employer?  Indeed, what if they and the mother all worked for the same employer?  The part of the regulations limiting a “husband and wife” who work for the same employer to a combined total of 12 weeks of leave for the birth and care of a newborn contemplate only two parents potentially taking leave.  Would three or more “parents” working for the same employer be limited to a combined total of 12 weeks, or would they be eligible for 12 weeks each?

5.  Is it necessary for the employee even to live with the child?  Apparently not.  That certainly complicates the matter.  While this is no different from the case of a divorced father who is eligible for FMLA leave to care for his child who lives with the ex-wife, the biological relationship limits the number of people who qualify as the father to one.  Under the in loco parentis rule as announced by the DOL, the number of potential “parents” is unlimited.  Indeed, the interpretation makes a point of saying that “neither the statute nor the regulations restrict the number of parents a child may have under the FMLA.”

6.  With respect to the birth of a child, whom does the in loco parentis standard benefit?  Not the birth mother, who has a biological relationship with a child.  Not the biological father, either.  A spouse or friend of one of the biological parents (question 4 above)?  How often does that happen?  The child’s grandparents?  In the last case, would the biological mother and father have to terminate their parental rights in order for the grandparents to assume the responsibilities of a parent to the extent necessary to be eligible for FMLA leave?

Whoever benefits, the upshot of the new interpretation is that it is an expansion of the rights of employees to take FMLA leave, but with little guidance to employers about how to comply with the interpretation and, at the same time, prevent the kinds of abuses which led to the FMLA regulations being revised in 2009.  Whether or not it will lead to abuses—by either employees or employers–remains to be seen.

The DOL will be using the new interpretation in cases which come before it.  The DOL’s Wage and Hour Division is responsible for enforcing the FMLA.  Thus, an unmarried employee whose request for FMLA leave to care for her boyfriend’s sick child is denied could file a complaint with the Wage and Hour Division.  Based upon the new interpretation, the Division would find that the employee’s rights were violated, provided that she has the requisite intention to assume the responsibility of a parent to care for the child.

The enforceability of the new interpretation can be questioned.  Interpretations of the law by the DOL do not have the force of law.  Only statutes, regulations, and court decisions have that status.  Courts will consider such DOL interpretations and give them weight, but the courts are not legally required to follow them.  However, in this instance, since the interpretation conflicts with the regulation, its enforceability can be challenged in a case where the employee does not have the responsibility to both care for and financially support a child. 

The new interpretation is officially called Administrator’s Interpretation No. 2010-3, and it can be found on line at http://www.dol.gov/whd/opinion/adminIntrprtnFMLA.htm.