Defining “Family,” Quirky Question # 150

Quirky Question #150

An employee has asked if they can take a leave of absence to care for a sick child who is not their own. Do I have to provide leave to an employee for the care of a sick child, even if they are not the legal parent? What if the child has two parents already?

Dorsey’s Analysis

Just when you thought that compliance with the multiple leave laws faced by employers was challenging enough, the Department of Labor (DOL) just made it even trickier.  A recent Administrator’s Interpretation issued by the DOL on June 22, 2010 clarified the definition of a “son or daughter” for purposes of interpreting a covered employer’s obligations under the Family Medical Leave Act (“FMLA”) to ensure that any employee who seeks time off work to (1) bond with a newborn or newly-adopted child (or newly-placed foster child), or (2) to care for a child with a serious medical condition, receives FMLA leave regardless of the employee’s legal or biological relationship with the child.  Accordingly, any employee who has otherwise met the eligibility requirements to qualify for leave under the FMLA (one year and 1250 hours of service to an employer subject to the FMLA) is entitled to FMLA leave under the same circumstances as a biological or legal parent as long as that individual has assumed, or has expressed their intent to assume, parental responsibilities for a child.

Now, you may be asking yourself how an employer would know, or certify, in the absence of a biological or legal connection to a child, if one of their employees intends to assume parental responsibilities for a child.  According to the new DOL interpretation, a simple statement (presumably from the employee) asserting that the requisite family relationship exists is all that is needed to establish one’s status as in loco parentis (“in the place of a parent”) where there is no legal or biological relationship.  So, as a practical matter, to cloak themselves in the protection of the FMLA, employees desiring up to twelve workweeks of protected leave now need only provide a simple declarative sentence to their employer that they stand in loco parentis to a child with a serious medical condition, or to a newborn, newly-adopted, or newly-placed foster child.  Trickier still, the new interpretation makes clear that the fact that a child has a biological parent in the home, or has both a mother and a father, does not prevent a finding that the child is the “son or daughter” of an employee who lacks a biological or legal relationship with the child for purposes of taking FMLA leave. According to the DOL, “[n]either the statute nor the regulations restrict the number of parents a child may have under the FMLA.” If you ask, this sounds like the kind of thing an unscrupulous employee might try to wrongfully exploit.  But, maybe we’re just being cynical….

As a legal matter, courts have provided factors to be considered in determining in loco parentis status; including (1) the age of the child; (2) the degree to which the child is dependent on the person claiming to be standing in loco parentis; (3) the amount of support, if any, provided; and (4) the extent to which duties commonly associated with parenthood are exercised. Dillon v. Maryland-National Capital Park and Planning Comm’n, 382 F. Supp. 2d 777, 786 -787 (D. Md. 2005).  But this is a very fact-specific analysis that would be virtually impossible for any employer to undertake at the time of a leave request, especially given the DOL’s opinion that, to establish their status as in loco parentis, the employee need only provide a simple statement asserting that the requisite family relationship exists.  Of course, if the employer is willing to engage the burden and expense of the litigation process and challenge the in loco parentis designation, they can roll the dice and take their chances.  But, what employer wants to embrace litigation over twelve weeks of unpaid leave?

Fortunately, employers are still permitted to certify the underlying need for leave to care for or bond with the child.  But absent any legal, biological, or readily identifiable family relationship, the DOL’s Administrative Interpretation will no doubt make it more difficult for employers to be confident in their FMLA compliance obligations.  It will certainly make it harder for employers to police the conduct of unscrupulous employees seeking to fraudulently exploit the protections of the FMLA.

On the positive side, the DOL did provide some examples to help guide employers in recognizing when an in loco parentis relationship exists such that it entitles the employee to the benefits of the FMLA.  These examples include:

1.  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

2.  an employee biologically and legally unrelated to the child that plans to share equally in the raising of a child with the biological parent

3.  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 placement, or to care for the child if the child had a serious health condition

4. an aunt that assumes responsibility for raising a child after the death of the child’s parents

5. a grandparent that takes in a grandchild and assumes ongoing responsibility for raising the child because the parents are incapable of providing care

6. a child’s biological parents divorce, and each parent remarries – the child will be the “son or daughter” of both the biological parents and the stepparents and all four adults would have equal rights to take FMLA leave to care for the child

In drafting the FMLA, Congress correctly recognized the reality that many children in the United States today do not live in traditional ‘nuclear’ families with their biological father and mother.  Moreover, through this recent Administrative Interpretation, the DOL laudably attempted to ensure that an employee who actually has day-to-day responsibility for caring for a child is entitled to protected leave, even in the absence of a biological or legal relationship to the child.  However, the devil is in the details and, unfortunately, the details are left for employers to work out, not Congress or the DOL.  So, at the end of the day, the even quirkier answer to the Quirky Question is “yes: employers subject to the FMLA must provide leave to an employee in loco parentis to a child with a serious medical condition (as well as for the birth, adoption or placement of a child to whom the employee will be in loco parentis) even if the employee has no legal or biological connection to the child AND even if the child has two, three, or more parents already.”  Accordingly, you should exercise extreme care before denying an employee’s atypical request for FMLA leave as it relates to bonding with new children or caring for sick children, and be sure to check your company’s FMLA policy to make sure that it is not worded in a way that is inconsistent with the DOL’s newly clarified definition of “son or daughter.”

Dorsey & Whitney

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