FMLA: Children of Same Sex Partners
The U.S. Department of Labor (DOL) issued an Administrator’s Interpretation of the Family and Medical Leave Act’s (FMLA) definition of “son and daughter.” The Interpretation clarifies that an employee who lacks a legal or biological parent-child relationship but provides either day-to-day care or financial support, and intends to assume the responsibilities of a parent with regard to the child, is eligible for parental rights to FMLA leave.
The Interpretation relies on an expansive reading of “in loco parentis” in the FMLA definition of “son or daughter.” “Son or daughter” is defined to include a biological or adopted child, as well as a foster child, stepchild, legal ward, or child of a person standing “in loco parentis.”
Eligible employees are entitled to take 12 work weeks of 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.
An example given in the Administrator’s Interpretation is 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. Such an employee 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 stands in loco parentis to the child.
The Interpretation provides another example of the child whose biological parents have divorced, and each parent remarries. Such a child would 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.
Notably, the Administrator’s Interpretation emphasizes that an employee is not required to provide both day-to-day care and financial support in order to be found to stand in loco parentis. Either day-to-day care or financial support, coupled with an intent to assume the responsibilities of a parent, is sufficient. 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 FMLA, the employer may require the employee to provide reasonable documentation or a statement of the family relationship. A simple statement asserting that the requisite family relationship exists is all that is needed where there is no legal or biological relationship.
Although the concept of “in loco parentis” is not new, employers should review their FMLA policies and practices to ensure they account for this new broader interpretation.
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