How does "standing in loco parentis" apply to leave eligibility under the FMLA regulations?

"Standing in loco parentis" under the FMLA typically refers to a person who assumes parental status and carries out the obligations of a parent to a child with whom he or she may have no legal or biological connection. In loco parentis also applies to an employee who wants to take time off to care for an individual who stood in loco parentis for the employee when he or she was a child. It also applies to leave for qualifying exigencies as stated in FMLA regulation 825.126 (a)(5) and to military caregiver leave per Regulation 825.127 (1) and (2).

FMLA regulation 825.122 states, "Son or daughter means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under age 18, or age 18 or older and 'incapable of self-care because of a mental or physical disability' at the time that FMLA leave is to commence."

The same regulation states, "Parent means a biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the employee when the employee was a son or daughter," and "persons who are 'in loco parentis' include those with day-to-day responsibilities to care for and financially support a child, or, in the case of an employee, who had such responsibility for the employee when the employee was a child. A biological or legal relationship is not necessary."

Although Section 825.122(c)(3) of FMLA regulations states that in loco parentis status requires the employee to provide both financial support and care for a child, a Department of Labor Administrator's Interpretation letter issued in June 2010 broadened the definition. Administrative interpretations provide employers with additional guidance for applying the regulations and carry the same weight as the regulations. Under Interpretation 2010-3, an employee now may establish an in loco parentis relationship by having provided either financial support or care for the child. As a result, an employee who provides care for an unmarried partner's child (with whom there is no legal or biological relationship) but provides no financial support for the child may be considered to be in loco parentis for FMLA purposes.

Other examples of situations that may establish an in loco parentis relationship include the following:

• An employee who will share equally in the raising of a child with the child's biological parent would have in loco parentis status. 
• 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.
• Where a child's biological parents divorce and each parent remarries, the child will be the "son or daughter" of both the biological parents and the stepparents, and all four adults would have equal rights to take FMLA leave to care for the child.
  

An employee also could be entitled to FMLA leave to care for a person who stood in loco parentis for him or her when the employee was a child. Examples of situations in which FMLA leave to care for a parent may be based on a past in loco parentis relationship include the following:

• An employee may take leave to care for his or her aunt with a serious health condition if the aunt was responsible for the employee's day-to-day care when the employee was a child.
• An employee may take leave to care for his or her grandmother with a serious health condition if the grandmother assumed responsibility for raising the employee when the employee was a child.
• An employee who was raised by same-sex parents, only one of whom has a biological or legal connection with the employee, may take leave to care for either parent based on an in loco parentis relationship.

Under FMLA regulations, employers are entitled to request that employees provide reasonable documentation or a statement claiming the family relationship (see sample FMLA Affidavit of Family Relationship). The statement should include the name of the individual who stood in loco parentis for the employee and the employee's indication of the in loco parentis relationship when the employee was a child. The specific facts of each situation will determine whether an individual stood in loco parentis to the employee for FMLA purposes.

Related Resources

Fact Sheet #28B: FMLA leave for birth, placement, bonding, or to care for a child with a serious health condition on the basis of an "in loco parentis" relationship

Fact Sheet #28C: The definition of "parent" as it applies to an individual who stood in loco parentis to an employee for FMLA "eldercare" protections.