The Department of Labor has recently clarified its interpretation of when one stands "in loco parentis" for the purposes of taking FMLA leave.

The Family and Medical Leave Act (FMLA) entitles an eligible employee to take up to 12 workweeks of job-protected unpaid leave:

  • for the birth of a son or daughter;
  • for placement of a son or daughter with the employee for adoption or foster care; or
  • to care for a son or daughter with a serious health condition. 

These are commonly referred to as the "birth, bonding or caring" leaves.

The FMLA defines "son or daughter" as being a "biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis…". While the FMLA regulations define "in loco parentis" as including those employees with day-to-day responsibilities to care for and financially support a child, the DOL is now interpreting that regulation to not require both day-to-day care and financial support, but only one of them, in order to stand in loco parentis. Therefore, an employee who provides day-to-day care to that child, despite no biological relationship or legal obligation, but who does not provide financial support, would qualify for FMLA leave. 

For example, a child whose biological parents are no longer together may have four people eligible to take FMLA leave; the father and his significant other and the mother and her significant other. The significant others have no biological or legal responsibility to the child, and may provide no financial support, but they may well provide day-to-day care while the child resides with them. 

This interpretation will also cover a grandparent who has significant responsibilities in raising a child, or who does not help raise the child but provides significant financial support to the child, making them eligible for FMLA leave under the DOL’s interpretation of "in loco parentis." Similarly, a same sex partner, who has no legal relationship with the child of their partner may be entitled to such leave. By way of contrast, an employee who temporarily is caring for a child while the child’s parents are on vacation would not meet either test and therefore would not be entitled to in loco parentis FMLA leave.

The take-away for employers is that they must be sensitive to employees requesting FMLA leave for "birth, bonding or caring" for a child, and determine, where there is no biological or legal relationship, whether the employee stands in loco parentis. For assistance in doing so, employers may contact any of the Labor and Employment Law attorneys at Tucker Arensberg, P.C.

If you have any questions about the Family and Medical Leave Act, please contact Scott Leah at (412) 594-5551 or