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Expanded Interpretation of Family and Medical Leave Act

June 28, 2010

On June 22, the Wage and Hour Division of the U.S. Department of Labor issued Administrator's Interpretation No. 2010-3, addressing the definition of "Son or Daughter" under Section 101(12) of the FMLA. According to the Administrator, "it is evident that many employees and employers are unsure of how the FMLA applies when there is no legal or biological parent-child relationship."

The FMLA defines a "son or daughter" as a "biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is—(a) under 18 years of age; or (b) 18 years of age or older and incapable of self-care because of a mental or physical disability."

The Administrator's Interpretation focused on the meaning of "in loco parentis," and reasoned, in part, as follows:

  •  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 parentisto a child. not have a legal relationship with the child, would be entitled to leave to bond with the child following placement, or to care for the child if the child had a serious health condition, because the employee stands in loco parentis to the child.
  • An employee who will share equally in the raising of an adopted child with a same sex partner, but who does not have a legal relationship with the child, would be entitled to leave to bond with the child following placement, or to care for the child if the child had a serious health condition, because the employee stands in loco parentis to the child.
  • The fact that a child has a biological parent in the home, or has both a mother and a father, does not prevent a finding that the child is the "son or daughter" of an employee who lacks a biological or legal relationship with the child for purposes of taking FMLA leave.
  • A simple statement asserting that the requisite family relationship exists is all that is needed in situations such as in loco parentis where there is no legal or biological relationship.

If you have any questions, or desire more information, please contact John Entenman at 313-568-6914, or your Dykema relationship attorney.


As part of our service to you, we regularly compile short reports on new and interesting developments and the issues the developments raise. Please recognize that these reports do not constitute legal advice and that we do not attempt to cover all such developments. Rules of certain state supreme courts may consider this advertising and require us to advise you of such designation. Your comments are always welcome. © 2010 Dykema Gossett PLLC. 

As part of our service to you, we regularly compile short reports on new and interesting developments and the issues the developments raise. Please recognize that these reports do not constitute legal advice and that we do not attempt to cover all such developments. Rules of certain state supreme courts may consider this advertising and require us to advise you of such designation. Your comments are always welcome. © 2017 Dykema Gossett PLLC.