On June 22, 2010, the Department of Labor issued an Administrator’s Interpretation, purporting to clarify the definitions of “son and daughter” and “in loco parentis” in the FMLA regulations. The term “in loco parentis” basically means that an individual is fulfilling the customary role of a biological or legal parent of the child, even if that individual is not the biological or legal parent.
According to the Administrator’s Interpretation, an employee who stands “in loco parentis” to a child is entitled to take FMLA leave to care for that child following birth, adoption or foster placement or if the child has a serious health condition. Although DOL is hailing the Administrator’s Interpretation as a “victory for non-traditional families,” the availability of FMLA leave to employees who truly serve in a bona fide role of “parent” to the child of a domestic partner (whether same-sex or opposite-sex) and in other similar situations is not news or a new interpretation. The FMLA regulations have always allowed leave for anyone who truly serves in loco parentis to a child. It has not exactly been a big secret.
If the Administrator’s Interpretation had been limited to that plain and simple statement, there would be no need to write this Client Alert. However, DOL went well beyond that one statement. It not only clarified the existing regulations, it amended them in the process. And it did so without issuing the required Notice of Proposed Rule-Making and allowing for public comment. In other words, DOL is attempting to expand FMLA entitlements without observing mandatory regulatory procedures.
In particular, DOL has amended the FMLA regulations in several ways:
- DOL has in essence rewritten the existing regulatory definition of “in loco parentis.” The definition states that persons who are in loco parentis include those “with day-to-day responsibilities to care for and financially support a child.” 29 CFR 825.122(c)(3). [Emphasis added.] That’s an “and” in there, but DOL has now unilaterally changed it to “or.” According to the Administrator’s Interpretation , if an employee has day-to-day responsibilities to care for the child or financially support the child, either one will suffice. No longer are both responsibilities required. For example, if an employee sets up a trust fund for his/her minor grandchild and the money is periodically used to pay for summer camp or private school tuition, can that employee now take FMLA leave when the grandchild has a serious health condition?
- DOL has eliminated the requirement that the employee prove he/she already stands in loco parentis to the child. In the Administrator’s Interpretation, DOL has taken the position that the employee only has to show that he/she “intends to assume” an in loco parentis role, not that he/she has actually established or taken steps to establish such a role. By way of analogy, some states recognize “common law marriage” (Kansas being one of them). A common law marriage is one in which the man and woman do not have a marriage license, but have over time established that their relationship is equivalent to a licensed marriage. They have conducted themselves as if they were married and have held themselves out as being “married.” The “intent to assume” the equivalent of a marital relationship is not enough to prove the existence of a common law marriage. Likewise, it should not be enough to prove the equivalent of parental status. However, it now appears that “intent” to assume parental status is enough.
- DOL has eliminated any requirement that in loco parentis status be more than temporary. DOL suggests, in an example, that in loco parentis status requires “ongoing” responsibility of customary parental duties. But conspicuously absent in the Administrator’s Interpretation is mention of any requirement that the relationship or such responsibilities be permanent (or at least be something more than temporary). Indeed, it appears that DOL will recognize in loco parentis status even in short-lived situations. For example, in its press release, DOL states that an employee is eligible for FMLA leave if that employee steps in to parent a child when the child’s biological parents are “absent,” “incapacitated,” “debilitated”, or “called to active military duty.” If the biological parent’s absence is temporary in nature, DOL appears to believe that anyone who happens to care for the child automatically becomes a “parent” of the child during the biological parent’s temporary absence. In DOL’s defense, it has stated that “an employee who cares for a child while the child’s parents are on vacation would not be considered to be in loco parentis to the child.” But that is the only example DOL has provided of situations that would not be covered by the in loco parentis definition.
- DOL has eliminated the employer’s right to require meaningful documentation from the employee to prove in loco parentis status. In fact, DOL has specifically stated that “a simple statement asserting that the requisite family relationship exists is all that is needed.” DOL totally ignores the existing FMLA regulation that states: “For purposes of confirmation of family relationship, the employer may require the employee giving notice of the need for leave to provide reasonable documentation or statement of family relationship. This documentation may take the form of a simple statement from the employee, or a child’s birth certificate, a court document, etc.” 29 CFR 825.122(j). Under the regulations, an employer can clearly require more than a simple statement from the employee, regardless of what DOL may have said in its Administrator’s Interpretation. In most cases, the employer should consider requiring an affidavit with representations about caregiver and financial responsibilities for the child and how the employee has held himself/herself out as the parent of the child (similar to affidavits that are used to verify common law marriage relationships).
In light of DOL’s willingness to ignore the current FMLA regulations as well as the regulatory approval process, it is quite likely that the issues discussed above will sooner or later end up in litigation. The Administrator’s Interpretation that was just issued by DOL is, however, just the beginning. Be prepared for more FMLA “clarifications” and initiatives. DOL appears to dislike the current FMLA regulations and is studying them. In November of this year, we understand that it intends to issue a report criticizing the current regulations as too employer-friendly or proposed regulations that would be more employee-friendly. Stay tuned!