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.

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