September 14, 2010
Many employees juggle their careers with their responsibilities as parents.
In doing so, federal and state employment laws may apply to individuals who seek
certain accommodations from their employer related to their children. Among
them, the Department of Labor (DOL) Wage and Hour Division (WHD) recently issued
guidance to employers regarding (1) employees who are entitled to take leave as
a parent pursuant to the Family and Medical Leave Act (FMLA); and (2)
implementing the break time requirement for nursing mothers in the Patient
Protection and Affordable Care Act (PPACA).
Expanding Who is a Parent Under the FMLA
On June 22, 2010, the WHD issued Administrator’s Interpretation No. 2010-3
(Interpretation), clarifying the definition of “son or daughter” pursuant to
Section 101(12) of the FMLA as it applies to an employee standing “in loco
parentis” to a child. The FMLA defines son or daughter as a “biological,
adopted, or foster child, a stepchild, a legal ward, or a child of a person
standing in loco parentis, who is – (A) under 18 years of age; or (B) 18
years of age or older and incapable of self-care because of a mental or physical
Clarification of an Employee’s in Loco Parentis Relationship
The Interpretation states that “either day-to-day care or financial support
may establish an in loco parentis relationship where the employee intends to
assume the responsibilities of a parent with regard to a child [.]” An employee
who can establish an in loco parentis relationship with a child may be eligible
for FMLA leave for the birth or placement for adoption or foster care of a son
or daughter, to bond with a newborn or newly placed son or daughter, or to care
for a son or daughter with a serious health condition.
The Interpretation provides several specific situations in which an employee
may be found to have an in loco parentis relationship:
- An employee who provides day-to-day care for the child of an unmarried
partner, with whom the employee has no biological or legal relationship.
- An employee who will share equally in the raising of a child adopted by a
same-sex partner, but without a legal relationship to that child.
- An employee who is a stepparent who lacks a legal or biological
relationship with a child, but who provides day-to-day care for the child or
provides financial support for the child.
- An employee who cares for a grandchild or other relative and assumes
ongoing responsibility for that grandchild or other relative because the child’s
parents are incapable of providing care or are deceased, but who does not have a
legal relationship with the child.
Interestingly, the Interpretation states that a child may have more than two
parents for purposes of FMLA leave. The Interpretation specifically notes that a
child with divorced parents who each remarry may have four parents eligible for
The Interpretation notes that an employer may require that an employee
provide documentation or a statement of the family relationship that entitles
that employee to FMLA leave. However, pursuant to the Interpretation, the
employee need only submit a statement asserting that such an in loco parentis
Recommendations for Employers
Employers should note that the Interpretation broadly defines employees who
may be eligible for FMLA leave. Eligibility policies and FMLA leave decisions
should be reviewed to take into account employees who stand in loco parentis to
a child, and should be mindful of same-sex and non-traditional parenting
relationships that may give rise to FMLA eligibility.
Nursing Mothers Break Time Requirement
On March 23, 2010, the PPACA was signed into law and immediately took effect.
Included in this legislation is an amendment to Section 7 of the Fair Labor
Standards Act (FLSA), creating a break time requirement for nursing mothers.
Although the WHD has not issued official guidance on the PPACA’s nursing mothers
break requirements, on July 15, 2010, the WHD published Fact Sheet #73: “Break
Time for Nursing Mothers Under the FLSA” (Fact Sheet) to provide general
information regarding this new requirement.
Under the new FLSA amendment, an employer must provide:
- “Reasonable break time for an employee to express breast milk for her
nursing child for 1 year after the child’s birth each time such employee has
need to express the milk.”
- “A place, other than a bathroom, that is shielded from view and free from
intrusion from coworkers and the public, which may be used by an employee to
express breast milk.”
See P.L. 111-148. The space must be functional for expressing milk, available
or made available when needed by the employee, shielded from view, and free of
intrusion from coworkers and/or the public. See Fact Sheet.
Employers generally do not need to compensate an employee for breaks for the
purposes of expressing breast milk. However, if the employer provides
compensated break periods, the employer must compensate an employee who uses
such a break to express breast milk in the same manner that other employees are
The nursing mothers break time requirement under the PPACA applies only to
employees who are not exempt from the overtime pay requirements of the FLSA. In
addition, employers with fewer than 50 employees “are not subject to the FLSA
break time requirement if compliance with the provision would impose an undue
hardship.” Undue hardship is determined by analyzing “the difficulty or expense
of compliance for a specific employer in comparison to the size, financial
resources, nature, and structure of the employer’s business.”
It should also be noted that certain state laws provide additional
requirements for employers to provide breaks for nursing mothers. The FLSA
nursing mothers break requirement does not preempt any state laws imposing
Recommendations for Employers
Employers should examine their nursing mothers break policies for non-exempt
employees in light of the PPACA and any applicable state law. Employers should
also designate a private space that can be made available to nursing mothers for
breaks to express breast milk.
For additional information, please contact the author or any other member of
the McGuireWoods Labor & Employment and
Employee Benefits teams.