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DOL Expands FMLA Reach to Cover LGBT and Non-nuclear Families

Written By Paula Lyons

In an Administrator’s Interpretation issued on June 22, 2010, The U.S. Department of Labor (DOL) has "clarified" the definition of “son or daughter” under the Family Medical Leave Act (FMLA) as it applies to an employee standing in loco parentis to a child. The result is to significantly expand the universe of caregivers entitled to FMLA leave. As DOL noted in its press release announcing the Administrator’s Interpretation: “the Labor Department's action today sends a clear message to workers and employers alike: All families, including LGBT families, are protected by the FMLA."

The FMLA entitles an employee up to 12 workweeks of unpaid, job-protected 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. Under the FMLA, the definition of “son or daughter” 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.” Current FMLA regulations define in loco parentis as including those adults with day-to-day responsibilities to care for and financially support a child.

The  Administrator’s Interpretation goes further and provides that in loco parentis status must continue to reflect “the reality that many children in the United States today do not live in traditional ‘nuclear’ families.” The guidance indicates that  in loco parentis status is ultimately a factual issue dependent on multiple considerations, but is not limited at whether the person does stand in the role of a parent with financial responsibility. Rather, merely intending to assume parental responsibility, with or without financial support, may be sufficient.
For example, the DOL noted that neither the statute nor the regulations restrict the number of parents a child may have under the FMLA. And it gives the example of divorced and remarried parents whose child will be the ‘son or daughter’ of both the biological parents and the stepparents -- and all four adults would have equal rights to take FMLA leave to care for the child. Another example offered in the guidance advises that a same-sex partner -- who will share in the care for a child with the partner, but who directly lacks the legal relationship with child -- can still be entitled to leave because the employee stands in loco parentis to the child.

If 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. However, according to the DOL, a simple statement asserting that the requisite family relationship exists is all that is needed in these situations. Although this Administrative Interpretation is not binding law, it represents the agency’s interpretation of the FMLA law and regulations which it is charged with enforcing and is likely to be given substantial deference.


David_Barmak.jpgDavid Barmak

David Barmak is Chair of Mintz Levin’s Employment, Labor and Benefits Section and the editor of this blog. He has extensive experience as a trial lawyer and advisor on a broad range of employment law issues.

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David Barmak

Member / Chair Emeritus, Employment, Labor & Benefits Practice

David Barmak is an experienced trial lawyer at Mintz who focuses his practice on employment law and HR issues. He litigates cases in federal and state courts and arbitrations across the country. David counsels clients on compliance and employee relations issues and risk reduction options.