On June 22, 2010, the U.S. Department of Labor ("DOL") issued an "Administrator's Interpretation Letter" expanding the protections of the Family Medical Leave Act of 1993, 29 U.S.C. §§ 2601, et seq., ("FMLA"), to require employers who are subject to the FMLA to provide gay and lesbian employees unpaid time off to care for newborns or a non-adoptive, non-biological child with a serious health condition, a right that has been available to heterosexual employees for nearly two decades.

Under the FMLA, employers with 50 or more employees must permit employees who have worked at least 1250 hours within the past year to take up to 12 weeks of unpaid time off to care for certain categories of relatives, including children. Currently, the FMLA allows same sex couples to take time off work to care for a newborn child or a child with a serious health condition where one partner is the biological parent and the other has adopted the child. The FMLA regulations define the term son or daughter as "biological, adopted or foster child, a stepchild, a legal ward or a child of a person standing in loco parentis." Although the law does not define "in loco parentis," the regulations provide, "Persons who are 'in loco parentis' include those with day-to-day responsibilities to care for and financially support a child." The regulations also state that "A biological or legal relationship is not necessary."

According to the DOL:

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...[t]he 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...Neither the statute nor the regulations restrict the number of parents a child may have under the FMLA.

Where 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. A simple statement asserting that the requisite family relationship exists is all that is needed...

Examples of situations in which an in loco parentis relationship may be found include where a grandparent takes in a grandchild and assumes ongoing responsibility for raising the child because the parents are incapable of providing care, or where an aunt assumes responsibility for raising a child after the death of the child's parents. Such situations may, or may not, ultimately lead to a legal relationship with the child (adoption or legal ward), but no such relationship is required to find in loco parentis status. In contrast, an employee who cares for a child while the child's parents are on vacation would not be considered to be in loco parentis to the child.

The new interpretation expands coverage to entitle a same-sex parent who is neither the biological nor adoptive parent to the same right to take unpaid leave for the birth or adoption of a child or to care for a child with a serious health condition. However, the DOL declined to expand FMLA coverage to employees who request leave to care for a same-sex partner. The FMLA statute defines spouse as "a husband or wife, as the case may be." The federal Defense of Marriage Act ("DOMA") prohibits federal laws that refer to "spouses" to include same-sex partners, civil unions, or marriages. Thus, without a further expansion by Congress, the DOL does not have the authority to grant FMLA leave protection to a member of a same-sex couple except where the situation involves a partner's child.

While not explicitly stated in the DOL's Interpretation Letter, this expanded definition of "in loco parentis" will presumably also allow workers to use FMLA leave to care for a person who acted as the worker's parent if that person becomes ill, frail or elderly and in need of care, which would qualify under the FMLA.

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