The U.S. Department of Labor issued last week an interpretation of the definition of “son or daughter” as it applies to an employee standing in loco parentis to a child under the Family and Medical Leave Act. A person in loco parentis does not necessarily have a biological or legal relationship to a child but, as a matter of fact, acts as the child’s parent. This could include, for example, a step-parent who has not adopted his or her step-child but handles the day-to-day activities as if he or she were the parent.

The DOL interpretation grabbed headlines because it explicitly said that same-sex couples can be eligible for FMLA leave for the birth, adoption, foster placement, or serious health condition of a child if they are acting in loco parentis to that child. Despite the fanfare that this clarification has caused, this part of the DOL’s interpretation has not changed existing law.