5500 Preparer's Manual for 2012 Plan Years
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from Spencer’s Benefits Reports: To qualify for time off under the Family and Medical Leave Act (FMLA), an employee may be considered to be standing “in loco parentis” to a child with whom the employee has no biological or legal parent-child relationship, according to an interpretation of the Department of Labor’s Wage and Hour Division (WHD) Administrator issued on June 22. The interpretation was in response to several requests the WHD received for additional guidance 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 the child. Interpretation No. 2010-3 thus clarifies the definition of “son or daughter” under FMLA Sec. 101(12) as it applies to an employee standing “in loco parentis” to a child.
In effect, the interpretation will allow employees in domestic partner relationships who are not the legal parents of children they care for to take FMLA leave.
The FMLA allows workers to take up to 12 weeks of unpaid leave during any 12-month period for the serious illness of the employee’s family members or for the employee’s own serious illness. The FMLA also allows employees to take time off for the birth or placement of a child, to care for a newborn or newly placed child, or to care for a child with a serious health condition. The definition of “son or daughter” under the FMLA includes not only a biological or adopted child, but also a foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis. According to the WHD, many employees and employers were unsure of how the FMLA applied to individuals standing in loco parentis, or when there is no legal or biological parent-child relationship.
The WHD noted that Congress stated that the definition of “son or daughter” was intended to be “construed to ensure that an employee who actually has day-to-day responsibility for caring for a child is entitled to leave even if the employee does not have a biological or legal relationship to that child.” The FMLA regulations define “in loco parentis” as including those with day-to-day responsibilities to care for and financially support a child. However, the WHD Administrator believes that 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 parentis to a child. For example, stepparents may function in loco parentis even when a child’s biological parents also are responsible for the child.
An employer with questions about whether an employee’s relationship to a child is covered under FMLA may require the employee to provide reasonable documentation or statement of the family relationship. “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,” the WHD clarified. “In all cases, whether an employee stands in loco parentis to a child will depend on the particular facts.”
For more information, visit http://www.dol.gov/whd.
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