Families First Coronavirus Response Act’s Definition of “Son or Daughter” Extends Emergency Leave Protections to Employees in Nontraditional Family Structures

By: Attorney Bryan T. Symes – Weld Riley, S.C.

As a child of the 80s, I learned a very valuable life lesson from…The Transformers cartoon—namely, sometimes there is “more than meets the eye.”   The same can be said of the definition of “son or daughter” baked into the Families First Coronavirus Response Act, as explained below. 

As we all know by now, under the FFCRA, eligible employees may take a combination of paid/unpaid leave because of a need to care for the employee’s son or daughter whose school or place of care is closed, or whose child care provider is unavailable, due to COVID-19 related reasons.    Okay…“the employee’s son or daughter.”  Simple enough concept, at first blush.  Ahh, but there is “more than meets the eye” [in other words, please keep reading].

According to the FFCRA implementing regulations [specifically, § 826.10] the term “son or daughter” means:

[B]iological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is under 18 years of age; or 18 years of age or older who is incapable of self-care because of a mental or physical disability.

Let’s focus on the Latin term, “in loco parentis,” which translates to “in the place of a parent.”   The far-reaching “in loco parentis” concept—which applies to the EFMLEA and the EPSLA—is not new to those familiar with the FMLA.  The Department of Labor previously produced the handy Fact Sheet #28B to help explain the breadth of the “in loco parentis” concept.  For your convenience, Fact Sheet #28B is available here: https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs28b.pdf

According to Fact Sheet #28B:

The broad definition of “son or daughter” is intended to reflect the reality that many children in the United States live with a parent other than their biological father and mother. Under the FMLA, an employee who actually has day-to-day responsibility for caring for a child may be entitled to leave even if the employee does not have a biological or legal relationship to the child.

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In loco parentis refers to a relationship in which a person puts himself or herself in the situation of a parent by assuming and discharging the obligations of a parent to a child.  The in loco parentis relationship exists when an individual intends to take on the role of a parent to a child who is under 18 or 18 years of age or older and incapable of self-care because of a mental or physical disability. Although no legal or biological relationship is necessary, grandparents or other relatives, such as siblings, may stand in loco parentis to a child under the FMLA as long as the relative satisfies the in loco parentis requirements. Under the FMLA, persons who are in loco parentis include those with day-to-day responsibilities to care for or financially support a child. Courts have indicated some factors to be considered in determining in loco parentis status include: 

• the age of the child; 

• the degree to which the child is dependent on the person;

• the amount of financial support, if any, provided; and 

• the extent to which duties commonly associated with parenthood are exercised.

Clearly, the term “son or daughter,” as used in the FFCRA, applies to a wide range of nontraditional family structures.  Based on firsthand experience gained during the current pandemic, companies are [understandably, given the current environment of frenetic change] mistakenly interpreting “son or daughter” too narrowly—creating unnecessary legal exposure.   In that regard, an employer that violates the paid sick leave requirements of the FFCRA is “considered to have failed to pay the minimum wage required by…the Fair Labor Standards Act,” meaning liquidated damages and attorneys’ fees/costs are recoverable.   

The next time your employee requests leave under the FFCRA to care for his or her “son or daughter,” remember the wisdom bestowed by The Transformers cartoon—there is “more than meets the eye.”   Remember that the FFRCA creates leave opportunities for employees in loco parentis—for example, grandparents and older siblings who have decided to take on the role of a parent to a child.  

If you need help navigating the labyrinth that is the FFCRA, please do not hesitate to contact one of Weld Riley’s employment and labor-relations attorneys.