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Your Legal Corner - Client Alert Blog

Stepparents and Domestic Partners are Eligible For FMLA Leave

Written By: Melissa C. Marsh, Esq., California Attorney, October 2010 Add to Favorites
The Department of Labor (DOL) recently issued guidance to employers regarding (1) employees who are entitled to take leave as a parent pursuant to the Family and Medical Leave Act (FMLA); and (2) implementing the break time requirement for nursing mothersas required under the Patient Protection and Affordable Care Act (PPACA).

Who is a Parent (in loco parentis)?

In June of 2010, the DOL issued Administrator’s Interpretation No. 2010-3, to clarify the definition of “son or daughter” pursuant to Section 101(12) of the FMLA. The FMLA defines 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 broadly defines the "in loco parentis" relationship with a child to include anyone providing either "day-to-day care, or financial support," (e.g. foster parent, guardian, stepparent, or domestic partner to another individual with a child). The Administrator’s Interpretation lists several situations in which an employee who has no biological or legal relationship to a child may be found to have an "in loco parentis" relationship, including:

  • An employee who provides day-to-day care for his or her unmarried partner's biological, or adopted, child;
  • An employee who is a stepparent to a child; and
  • An employee who cares for a grandchild, or other relative, and assumes ongoing responsibility for that grandchild/relative.
If an "in loco parentis" relationship exists, the employee is eligible for FMLA leave to: (1) bond with a newborn, or newly placed (adopted or foster) son or daughter, or (2) to care for a son or daughter with a serious health condition.

Employers with 50 or more employees should review their FMLA policies to ensure they comport with the broadly defined "in loco parentis" relationship.

Posted In: Employment Law News 

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Located in Los Angeles, California, the Law Office of Melissa C. Marsh handles business law and corporation law matters as a lawyer for clients throughout Los Angeles including Burbank, Sherman Oaks, Studio City, Valley Village, North Hollywood, Woodland Hills, Hollywood, West LA as well as Riverside County, San Fernando, Ventura County, and Santa Clarita. Attorney Melissa C. Marsh has considerable experience handling business matters both nationally and internationally. We routinely assist our clients with incorporation, forming a California corporation, forming a California llc, partnership, annual minutes, shareholder meetings, director meetings, getting a taxpayer ID number (EIN), buying a business, selling a business, commercial lease review, employee disputes, independent contractors, construction, and personal matters such as preparing a will, living trust, power of attorney, health care directive, and more.