• FMLA Covers Children of Same-sex Partners
  • July 20, 2010 | Authors: Judy K. Jetelina; Sandra Ramos White
  • Law Firm: Bracewell & Giuliani LLP - San Antonio Office
  • The Department of Labor's Wage and Hour Division has said it interprets the Family and Medical Leave Act (FMLA) to allow an employee to take leave to care for any child for whom the employee is the primary caregiver, "regardless of the legal or biological relationship." The June 22, 2010, interpretation states that employers subject to FMLA must grant leave to an employee to care for the son or daughter of the employee's same-sex domestic partnerĀ - gay or straight. The interpretation also includes aunts, uncles or grandparents who have assumed parenting duties over a child. Numerous state family leave laws already address this matter.

    This interpretation "does not address an employee's entitlement to military FMLA leave for a son or daughter, which is determined by separate definitions."

    No new requirements

    The interpretation is not intended to impose new requirements; rather, it seeks to clarify, based on evidence that many employers and employees are unsure how the FMLA is applied when there is no legal or biological parent-child relationship.

    Broad definition recognizes today's reality

    Under the FMLA, eligible employees are entitled to take up to 12 work weeks of unpaid leave a year in connection with the birth of a son or daughter, the placement of a son or daughter with the employee for adoption or foster care, and to care for a son or daughter with a serious health condition. "Son or daughter" is defined broadly to include a "biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis [in place of a parent]," who is under the age of 18 or who is age 18 or older but is incapable of self-care because of a mental or physical disability." This broad definition recognizes today's reality that many children are being raised in non-traditional households, instead of the traditional nuclear family with their biological mother and father.

    "In loco parentis"

    "In loco parentis" generally refers to a person who stands in the place of a parent by assuming the day-to-day responsibilities to care for and financially support a child. Typically, in loco parentis status has been recognized with respect to grandparents, aunts or uncles, or siblings, who assume responsibility for a child. However, an employee who has no legal or biological relationship with a child may now be entitled to FMLA leave because the employee acts as a parent to the child.

    Who qualifies for FMLA leave under the interpretation?

    Under the Wage and Hour Division's interpretation, the employee does not have to show that he/she has assumed both financial and day-to-day responsibility to care for a child in order to qualify for FMLA leave.

    Examples for use by employers

    The administrative interpretation provides several examples of application of the in loco parentis provision:

    • An employee who provides day-to-day care for his or her unmarried partner's child, although there is no legal or biological relationship, but does not financially support the child, could be considered to stand in loco parentis to the child and entitled to FMLA leave to care for the child if the child has a serious health condition.

    • 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 birth of the child and to bond with the child within the 12 months following the birth because the employee will stand in loco parentis to the child.

    • 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 would stand in loco parentis to the child.

    Employer obligations

    Employers should review their procedures and train their supervisors and human resources professionals to ensure that requests for FMLA leave from employees who have no legal or biological relationship to a child, such where the child is that of a same-sex domestic partner, are treated the same as requests from biological parents, stepparents, and grandparents.
    The administrative interpretation provides that if an employer has questions about whether an employee's relationship to a child is covered under the FMLA, the employer may require the employee to provide reasonable documentation or statement of the family relationship. However, the interpretation emphasizes that "[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."

    The full text of the Wage and Hour Division's Administrative Interpretation No. 2010-3 is available at www.dol.gov/whd.