US Department of Labor Expands FMLA Definition of “Son or Daughter”

by Laura L. Edwards and Jillian Barron

The federal Family and Medical Leave Act (“FMLA”) permits eligible employees to take up to twelve work weeks of unpaid leave for specified family and medical reasons. These reasons include caring for a child with a serious health condition or for bonding following the birth or adoption of a son or daughter (hereafter, “to care for a child”). 29 U.S.C. § 2612(a)(1)(A)-(C). The current definition of “son or daughter” includes a biological, adopted, or foster child, a stepchild, a legal ward, or the child of a person standing “in loco parentis,” i.e., in the place of a biological parent. 29 U.S.C. § 2611(12). Federal regulations define in loco parentis to include “those with day-to-day responsibilities to care for and financially support a child… . A biological or legal relationship is not necessary.” 29 C.F.R. § 825.122(3). However, the text of the FMLA does not plainly address whether an employee is entitled to leave to care for a child with whom there is no financial obligation, legal or biological relationship. This ambiguity has left employers wondering whether FMLA leave is available to persons in so-called “non-traditional” families, such as those in which grandparents care for their grandchildren or same-sex or unmarried heterosexual partners provide care for their partner’s child.

DOL’s Expansion of FMLA Rights to LGBT and other “Non-Traditional” Families

In late June, the Department of Labor (“DOL”) issued new guidance explaining that an employee may take FMLA leave to care for a child for whom he or she is acting as a parent even if there is no legal or biological relationship to the child.  See Administrator’s Interpretation No. 2010-3. The guidance states that either financial obligations or day-to-day care of the child is required to take leave, but not both. In announcing the new guidance, the DOL specifically stated it covers lesbian, gay, bisexual, and transsexual (“LGBT”) families. The Secretary of Labor said:

No one who intends to raise a child should be denied the opportunity to be present when that child is born simply because the state or an employer fails to recognize his or her relationship with the biological parent. … The Labor Department’s action today sends a clear message to workers and employers alike: All families, including LGBT families, are protected by the FMLA.

The guidance provides several examples of situations in which FMLA leave is available, regardless of the legal or biological relationships between the employee, the child, and the child’s biological or adoptive parent. In sum, the DOL has clarified that the FMLA’s definition of “son or daughter” includes children being raised in LGBT and other so-called “non-traditional” families.

Washington Family Leave Act

Washington has its own Family Leave Act (“FLA”), RCW 49.78, which largely parallels the FMLA. Under the FLA, an employee is entitled to leave for the birth, placement, or care of a “child.” The FLA definition of a “child” is essentially the same as the FMLA’s definition of “son or daughter.” Unlike the FMLA, the FLA applies equally to registered domestic partnerships and marital relationships, so eligible registered domestic partners are able to use FLA leave to care for a partner with a serious medical condition. However, like the FMLA, the FLA does not specifically address whether an employee may take leave to care for a child with whom there is no financial obligation, legal or biological relationship. In fact, neither the FLA nor its implementing regulations defines “in loco parentis.” Nevertheless, given that Washington courts tend to interpret state laws to grant similar or even greater rights than their federal law counterparts, the DOL’s expansive reading of the FMLA will likely be used as support for asserting that the FLA grants (or should grant) the same kind of leave rights to non-traditional families.


This Employment Law Note is written to inform our clients and friends of developments in labor and employment relations law. It is not intended nor should it be used as a substitute for specific legal advice or opinions since legal counsel may be given only in response to inquiries regarding particular factual situations. For more information on this subject, please call Sebris Busto James at (425) 454-4233.