Podcast No. 13: Interpreting The New DOL Interpretation Of "In Loco Parentis"
On June 22 the U.S. Department of Labor issued its first Administrator Interpretation under the FMLA, "clarifying" how the FMLA applies to requests for leave by those who provide care for a child without a biological or legal relationship to the child. In this month's podcast, we explain what's new in this interpretation, what isn't, and what it means for employers.
Comments (2)
Read through and enter the discussion by using the form at the endKirk - June 30, 2010 8:52 PM
Great podcast. Well done. It is certainly important to look at each case indivudally. That said, do you have any sense as to how long an employee might need to be within an in loco parentis arrangement in order for it to qualify under FMLA in the presence of a serious health condition? How temporary can it be? For example, if someone is providing day-to-day care for a child in absence of parents who are traveling abroad, caring for a child who is visiting a relative in another city during the summer (non-school) months, a visiting student from another country, a child whose parent is in rehab for three weeks, etc.
Bill Pokorny - July 1, 2010 8:06 AM
Thanks for the question Kirk. The DOL partially addresses this issue in the new interpretation, stating that "an employee who cares for a child while the child's parents are on vacation would not be considered in loco parentis to the child." In light of that statement, I think it would be safe to say that someone caring for a child while the child's parents are traveling abroad, or while the parents are in rehab for a short period, probably would not be considered to be in loco parentis absent some further evidence of caregiving responsibility.
Unfortunately neither the DOL nor the courts have drawn any sharp line as to how long a caregiving relationship must last before an employee can be considered in loco parentis for a child. A child visiting for several months is a close case and may depend on the duration of the visit, the relationship of the child to the employee, the availability of the parents, the age of the child, etc. In the case of an exchange student visiting for an entire academic year, who has limited contact with his or her own parents and for practical purposes becomes the responsibility of the host parents for an extended period of time, I think there is a decent chance that at least the DOL would say that the host parents do stand in loco parentis to the child.