The U.S. Department of Labor (DOL) recently issued an Administrator’s Interpretation clarifying the definition of “son or daughter” in the Family and Medical Leave Act (FMLA).  As a result, employees who do not have a biological or legal relationship with a child may yet qualify under the FMLA to take leave for the birth of or bonding with a child, or to care for a child with a serious health condition.  The DOL made clear that its Interpretation is intended to reflect “the reality that many children in the United States do not live in traditional ‘nuclear’ families with their biological father and mother.”

According to the DOL, an employee who intends to assume the responsibilities of a parent need provide only day-to-day care or financial support to a child to be entitled to FMLA leave.  While employers may require the employee to provide reasonable documentation of the family relationship, a simple statement from the employee asserting that the requisite family relationship exists is sufficient.

The Administrator’s Interpretation applies to:  (i) an employee who provides day-to-day care for an unmarried partner’s child, but does not financially support the child; (ii) an employee who will share equally in the raising of a child with that child’s biological parent; (iii) an employee who will share equally in the raising of an adopted child with a same-sex partner, but does not have legal guardianship of the child; (iv) an aunt who assumes day-to-day care for a child after a parent is called to active military duty; and (v) a grandparent who assumes care for a child whose parent becomes incapacitated.  This list is by no means exhaustive.  In contrast, an employee who cares for a child while his or her parents are on vacation would not qualify for FMLA leave.

The DOL also made clear that although a child may have both a biological mother and father, it does not preclude an employee who lacks a biological relationship from qualifying for FMLA leave.  Thus, where a child’s parents divorce and each remarries, all four adults have equal rights to FMLA leave to care for the child.

 If challenged by an employer in court, this Administrator’s Interpretation will likely be granted some level of deference, which will be difficult to overcome unless the Interpretation is inconsistent with the statute/regulations or a prior DOL interpretation.  Furthermore, until its ruling is modified or rejected by the courts, the DOL will no doubt enforce the edicts of this Interpretation if an employee files a complaint directly with the agency.  Those employers who prefer to avoid litigation and follow the dictates of the DOL should modify their FMLA policies as well as their internal procedures for handling FMLA leave requests.