On June 22, The U.S. Department of Labor, Wage and Hour Division issued an Administrator’s Interpretation clarifying that the definition of “son or daughter” in the Family and Medical Leave Act (FMLA) includes grandparents and other relatives raising children without any type of legal relationship to the children, both same sex partners raising children and other non-traditional families.
What is the FMLA?
Since its passage in 1993, the FMLA allows eligible employees in businesses of a certain size to take up to 12 weeks of unpaid leave in a 12-month period due to:
the birth of a son or daughter
the placement of a son or daughter with the employee for adoption or foster care
or to care for a son or daughter with a serious health condition.
Where do grandfamilies fit in?
This Interpretation clarifies that the status of in loco parentis, or acting “in the place of a parent,” includes grandparents and other relatives raising children, and cites legislative history to show that this has been the case since the law’s passage. It also clarifies that the FMLA does not restrict the number of parents a child may have. A child may even have biological or adoptive parents living in the same home, and a grandparent, aunt or uncle may be acting “in loco parentis” and take unpaid leave.
Establishing “in loco parentis”
The Interpretation states that employees do not have to establish that they provide both day-to-day care AND financial support to be considered “in loco parentis.” An employee only has to give a “simple statement “that they are acting “in loco parentis” by providing either day-to-day care OR financial support of the child.
Generations United’s perspective
We are encouraged by this Interpretation. As with many federal laws, states, employers, localities, and others often misinterpret the laws and impose additional requirements on families trying to access services or programs. We hope this is the first of many generated by the Executive Branch to clarify laws for grandfamilies, such as the definitions of (1) “familial status” under the Fair Housing Act, so its protections are not limited to those families with a legal relationship like legal custody; and (2) “in loco parentis” in the Individuals with Disabilities Act, so that some school districts do not require relative caregivers of children to go through the extra hurdle of becoming a “surrogate parent” for purposes of participating in the Individualized Education Plan (IEP) process.
This post is from Ana Beltran, JD, Generations United Special Advisor for the National Center on Grandfamilies.