DOL Wage and Hour Division Issues Guidance Regarding Parents in the Workplace

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 disability.”

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 FMLA leave.

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 relationship exists.

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.

Break Requirements

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 compensated.


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 greater requirements.

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.