Jul 01, 2010

Department of Labor Expands FMLA Leave Rights to Nontraditional Parents

On June 22, 2010, the Department of Labor (DOL) issued an Administrative Interpretation clarifying the definition of “son or daughter” under the Family and Medical Leave Act (FMLA). The new interpretation expands leave rights to employees who assume the responsiblities of a parent by providing day-to-day care or financial support for a child, regardless of whether there is a legal or biological relationship between the individual and the child.

The FMLA entitles eligible employees up to 12 weeks of leave for the birth 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 FMLA defines “son or daughter” as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is-(A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability.” The FMLA regulations define in loco parentis as including those with day-to-day responsibilities to care for and financially support a child. However, under the new interpretation, an employee who intends to assume the responsiblities of a parent does not have 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 due to 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. Similarly, an employee who is helping raise an adopted child with a same-sex partner, but does not have a legal relationship to the child, is also entitled to FMLA leave.

Neither the statute nor the regulations restrict the number of parents a child may have. Therefore, the fact that a child has a biological parent in the home, or has both a mother and a father, does not prevent a finding that the child is the “son or daughter” of an employee who lacks a biological or legal relationship with the child for purposes of taking FMLA leave. For example, where a child’s biological parents divorce, and each parent remarries, the child will be the “son or daughter” of both the biological parents and the stepparents, and all four adults have equal rights to take FMLA leave to care for the child. An employer may require an employee to provide reasonable documentation or a statement of family relationship if there are questions about whether an employee’s relationship to a child is covered by the FMLA. However, a simple statement asserting that the requisite family relationship exists is all that is needed in situations to demonstrate standing in loco parentis where there otherwise is no legal or biological relationship.

Employers should review and revise their FMLA policies and procedures to comply with the new DOL interpretation. To learn more about the FMLA or if you have any questions regarding these issues, please contact your employment counsel at Smith, Gambrell & Russell, LLP.

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