Tuesday, June 22, 2010

DOL permits FMLA leave for gay parents (and others too)


The Internet has been ablaze with news that the Department of Labor would be expanding the rights of gay workers to take FMLA leave to care for sick or newborn children of same-sex partners (but not for each other). The change comes in the form of Wage & Hour Division Administrator’s Interpretation No. 2010-3. This Interpretation clarifies the definition of “son or daughter” under the FMLA as it applies to an employee standing “in loco parentis” (that is, one assuming the obligations of a parent without the legal formalities of an adoption) to a child.

The FMLA entitles an employee to 12 workweeks of unpaid leave 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 or adopted child, but also a “foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.” According to the DOL, “Congress stated that the definition was intended to be ‘construed to ensure that an employee who actually has day-to-day responsibility for caring for a child is entitled to leave even if the employee does not have a biological or legal relationship to that child.’”

Here’s the key language expounding upon the coverage of FMLA-leave:

It is the Administrator’s interpretation that the regulations do not require an employee who intends to assume the responsibilities of a parent to establish that he or she provides both day-to-day care and financial support in order to be found to stand in loco parentis to a child.  For example, 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, the employee could be considered to stand in loco parentis to the child and therefore be entitled to FMLA leave to care for the child if the child had a serious health condition.  The same principles apply to leave for the birth of a child and to bond with a child within the first 12 months following birth or placement…. Where an employer has questions about whether an employee’s relationship to a child is covered under FMLA, the employer may require the employee to provide reasonable documentation or statement of the family relationship. A simple statement asserting that the requisite family relationship exists is all that is needed in situations such as in loco parentis where there is no legal or biological relationship.

Based on this interpretation of in loco parentis, the FMLA covers:

  • 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.

  • An employee who will share equally in the raising of a child with the child’s biological parent.

  • Stepparents.

  • Where a grandparent or other relative takes in a child and assumes ongoing responsibility for raising the child because the parents are incapable of providing care.

While the rights of same-sex partners have garnered all of the attention, this Administrator’s Interpretation actually goes further by expounding upon the definition of in loco parentis. The publication of this Interpretation is a good excuse for employers to review FMLA policies to ensure that coverage for parental rights is up to date.


Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

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