The U.S. Department of Labor issued today an Administrator’s Interpretation of the FMLA Regulation defining "in loco parentis" relationships as part of the FMLA’s definition of "son" or "daughter".  Is this "big news" and, if so, why?  

One could always argue that individuals standing ‘in loco parentis" to a child covered under the FMLA could take FMLA leave for the birth or adoption of that child or to care for a child with a serious health condition.  So why is the DOL making such a big deal out of this and issuing a Press Release announcing this is a "win for all families no matter what they look like"?

As with most things FMLA, the devil (or should I say,"mischief") is in the details.  Under the guise of an "Administrator’s Interpretation", the DOL arguably re-writes an important provision of Section 825.122(c)(3) of the FMLA Regulations that became effective on January 16, 2009.  Specifically, Section 825.122(c)(3) of the FMLA Regulations defines "in loco parentis" as including those "with day-to-day responsibilities to care for and financially support a child."  In today’s Interpretation, the Administrator states, "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."  

So, according to the DOL Administrator, the word "and" should be interpreted to mean "or" in Section 825.122(c)(3) of the FMLA regulations.  Only time will tell if courts agree with such an interpretation. 

One other observation or nuance of the in loco parentis rule … absent a further interpretation by the DOL, individuals taking FMLA leave because they stand in loco parentis to a child are not subject to the FMLA rule in Sections 825.120(a)(3) and 825.127(d) of the regulations limiting the amount of leave to a combined total of 12 weeks (or 26 weeks in the case of care for an injured servicemember) of FMLA leave; those limitations apply only to a "husband and wife" working for the same employer.  Thus, for example, an employee who is the biological parent of a child and a grandparent or same sex partner standing in loco parentis to that same child each would be entitled to take the full complement of 12 workweeks of FMLA leave upon the birth or placement of the child.  Again, this nuance is not new, however, it may prove to create additional mischief under the DOL’s broader interpretation of in loco parentis. 

Photo of Francis P. Alvarez Francis P. Alvarez

Francis P. (Frank) Alvarez is a Principal in the White Plains, New York, office of Jackson Lewis P.C. He is the Leader of the Disability, Leave and Health Management Practice Group, which assists employers in meeting the legal and practical challenges posed by…

Francis P. (Frank) Alvarez is a Principal in the White Plains, New York, office of Jackson Lewis P.C. He is the Leader of the Disability, Leave and Health Management Practice Group, which assists employers in meeting the legal and practical challenges posed by federal and state laws protecting injured and ill employees.

Counseling hundreds of employers each year, Mr. Alvarez spearheads the firm’s effort to provide imaginative and creative solutions to the complex array of workplace disability and health management issues faced by both large and small companies. In the Jackson Lewis tradition, Mr. Alvarez counsels clients with the goal of either avoiding litigation entirely or improving outcomes before administrative agencies, courts and juries.

Mr. Alvarez especially enjoys assisting clients conduct the “individualized assessment” required by a growing number of federal and state laws. These efforts include helping employers effectively communicate with employees and medical providers in an effort to evaluate potential risks to health and safety posed by employee injuries or illnesses. In an area of law in which there often are few bright lines, Mr. Alvarez attempts to develop practical and constructive solutions centered on the concept he calls “tc2” — taking care of employees and taking control of risks.

Recently, Mr. Alvarez has begun leading the Firm into another exciting and fast-developing area of workplace law called “health management.” Challenged by increases in health care and work injury costs, employers are searching for innovative ways to motivate employees to participate in wellness and health promotion programs. Mr. Alvarez leads a team of Jackson Lewis attorneys who advise employers on ways to implement these important programs while complying with emerging and largely undeveloped federal and state law protections.

Mr. Alvarez writes and speaks frequently on disability management issues, including legal developments under the Americans with Disabilities Act and the Family and Medical Leave Act. He has delivered presentations at major speaking engagements, including SHRM’s national and legislative conferences. Throughout his legal career, Mr. Alvarez has represented employers as lead counsel in both trial and appellate courts and has successfully tried employment discrimination claims to verdict.