On June 22, 2010, the US Department of Labor reinterpreted the existing requirements for an in loco parentis relationship for FMLA leave due to the birth, adoption, foster care placement or serious health condition of a son or daughter. The FMLA permits an eligible employee-parent to take FMLA leave to bond with a newborn or newly adopted/foster care placed son/daughter, or to care for a son or daughter with a serious health condition. Parent includes in loco parentis relationships- meaning situations where there is not a biological or legal relationship between parent and child, but the person assumes the role of the parent toward the child. Under the existing regulation, 29 CFR 825.122(c)(3), an in locoparentis relationship has two requirements: (1) day-to-day care of the child; and (2) financial support. In the memorandum, the DOL announced that the regulations only requires that the employee who intends to assume the responsibilities of a parent to either provide day-to-day care for the child OR financial support, but not both. The DOL's "interpretation" is at direct odds with the plain reading of the regulation.
Comment: The DOL Memorandum received a lot of Press because of it confirmed that same-sex partners who satisfy the definition could be an in loco parentisparent for purposes of FMLA leave. While that has always been a distinct possibility, it is noteworthy that the DOL has put in it writing. The substantive change is that the DOL has reduced the burden for establishing an in loco parentisparental relationship with a child from two requirements to one by interpreting "and" in the existing regulation to mean "or." My guess is that the DOL will formalize the change when it gets around to issuing regulations to implement the 2010 National Defense Authorization Act changes to military family leave.
The DOL Memorandum is available at http://www.dol.gov/opa/media/press/WHD/WHD20100877.htm
While the DOL memorandum does not technically control the OPM FMLA regulations, federal agencies, unions, and employees would be well-advised to apply the changes anyway. The OPM FMLA regulations were derived from the DOL FMLA regulations. With respect to in loco parentis, the OPM definition is identical to the DOL definition.