DOL Permits FMLA Leave for Gay Parents and Others Caring For a Child

On June 22, 2010, the U.S. Department of Labor issued an Administrator Interpretation  to clarify the definition of a "son or daughter" under the FMLA to ensure that an employee who seeks time off work to care for a child receives FMLA leave regardless of the employee's legal or biological relationship with the child. While the DOL interpretation arguably does not change existing law, many consider it a huge win for nontraditional families, including families in the lesbian-gay-bisexual-transgender (LGBT) community who, the DOL asserts, "often in the past have been denied leave to care for their loved ones."

Under the FMLA, an eligible employee may take up to 12 weeks of unpaid leave during any 12-month period for the birth or placement 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 definition of "son or daughter" under the FMLA includes not only a biological, adopted or foster child, but also a "stepchild, a legal ward, or a child of a person standing in loco parentis." However, the FMLA does not define the Latin term in loco parentis, in which the individual assumes the obligations of a parent without the existence of a legal or biological relationship.

Who is Entitled to FMLA Leave under the DOL's Interpretation?

In its June 22 interpretation, the DOL states that an otherwise eligible employee is entitled to FMLA leave under the same circumstances as a biological or legal parent if that individual has assumed parental responsibilities for a child. The DOL's interpretation provides specific examples where it would find a parental relationship sufficient to confer FMLA leave rights, despite the absence of a biological or legal relationship between the parent and child:

• where an employee provides day-to-day care for his or her unmarried partner's child (with whom there is no legal or biological relationship) but does not financially support the child
• where an employee who will share equally in the raising of a child with the child's biological parent would be entitled to leave for the child's birth
• where an employee who will share equally in the raising of an adopted child with a same sex partner, but who does not have a legal relationship with the child, would be entitled to leave to bond with the child following placement, or to care for the child if the child had a serious health condition, because the employee stands in loco parentis to the child.

The DOL's interpretation is not limited to same-sex couples. As the interpretation makes clear, a grandmother who assumes ongoing responsibility for her grandchild because the parents are incapable of providing care will be able to seek family and medical leave from her employer. Similarly, an aunt or uncle who cares for an adolescent niece when her single parent has been called to military duty also would be entitled to FMLA leave. The interpretation, however, does not open the door completely to FMLA rights for same-sex couples, as the expanded interpretation still does not allow a same-sex partner to obtain FMLA leave to care for his or her partner with a serious health condition.

How does the DOL Interpretation Affect Employers?

The impact on employers is immediate—if an employee makes a request for FMLA leave to care for the child of their same sex partner or, for that matter, any child that he or she is going to care for in loco parentis, employers will likely have to grant the request, subject to the receipt of appropriate medical certification or documentation establishing a parental relationship.

According to the DOL interpretation, where an employer questions whether the employee's relationship to the child is covered under the FMLA, the employer may require the employee to provide "reasonable documentation or a statement of the family relationship." However, the DOL emphasizes that this documentation need not consist of anything more than a "simple statement" from the employee asserting that a family relationship exists. See 29 C.F.R.§ 825.122(j).

As a result of the DOL's interpretation, employers should promptly review their FMLA policies and practices to ensure that employees who may be acting in loco parentis in the absence of a biological or legal relationship nevertheless receive appropriate FMLA leave.

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