Department of Labor Clarifies Meaning of “In Loco Parentis”

The U.S. Department of Labor’s Wage and Hour Division recently released an Administrator’s Interpretation which seeks to clarify the meaning of “In Loco Parentis” as applied to the Family and Medical Leave Act. The Wage and Hour Division has received several requests for more explanation regarding whether employees who do not have a biological or legal relationship with a child may take FMLA leave for “birth, bonding, and to care for a child.”

The FMLA allows an employee to take up to 12 weeks of leave for the birth or placement of a son or daughter, to bond with a newborn or newly placed son or daughter, or to care for a son or daughter with a serious health condition. 29 U.S.C. § 2612(a)(1)(A) – (C). “Son or daughter,” under the FMLA, means not only a biological or adopted child, but also a “foster child, stepchild, legal ward, or a child of a person standing in loco parentis.” 29 U.S.C. § 2611(12). The Sixth Circuit defines in loco parentis as “a person who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to legal adoption.” Niewiadomski v. U.S., 159 F.2d 683, 686 (6th Cir. 1947). The court continued that in loco parentis “embodies the two ideas of assuming the parental status and discharging the parental duties.” Id.

The regulations governing the FMLA state that in loco parentis includes those with day-to-day responsibilities to care for and financially support a child. 29 C.F.R. § 825.122(c)(3). Those employees who have no biological or legal relationship to a child may still be considered in loco parentis and be entitled to FMLA leave. Id. The Department of Labor’s Interpretation goes on to explain that an employee who assists with the raising of a child equally with that child’s biological parent would qualify as in loco parentis and would be entitled to FMLA leave. Likewise, an employee who has an equal role in raising a child with a same sex partner would qualify as in loco parentis and be entitled to FMLA leave. The Administrator also provides examples of how grandparents and other relatives could qualify as in loco parentis to the child, such as “when a grandparent assumes the ongoing responsibility for raising a child because the parents are incapable of providing care, or when an aunt assumes the responsibility for raising the child because the death of the child’s parents.” The interpretation clarifies, however, that someone who cares for a child while that child’s parents are on vacation would not be considered in loco parentis to that child.

The Administrator concluded by stating “either day-to-day care or financial support may establish an in loco parentis relationship where the employee intends to assume the responsibilities of a parent with regard to a child” and that “whether an employee stands in loco parentis to a child will depend on the particular facts.”