DOL Interprets FMLA to Cover Same-Sex Parents

The U.S. Department of Labor (DOL) on June 22, 2010, clarified the definition of “son and daughter” under the Family and Medical Leave Act (FMLA) to ensure that an employee who assumes the role of caring for a child receives parental rights to family leave regardless of the legal or biological relationship. The DOL interpretation applies to non-traditional families, including unmarried partners and families in the lesbian-gay-bisexual-transgender (LGBT) community.

The FMLA allows workers to take up to 12 weeks of unpaid leave during any 12-month period to care for a child, spouse or parent or for themselves. The law also lets employees take time off for the adoption or the birth of a child. The administrator interpretation issued by Nancy J. Leppink, deputy administrator of the DOL’s Wage and Hour Division, clarifies that these rights extend to the various parenting relationships that exist in today’s world.

The interpretation provides that “employees who have no biological or legal relationship with a child may nonetheless stand in loco parentis to the child and be entitled to FMLA leave.” It added that the fact that a child has both a mother and father would not prevent a finding that a child is the “son or daughter” of an employee who lacks a biological or legal relationship with the child. “Neither the statute nor the regulations restrict the number of parents a child may have under the FMLA,” Leppink wrote. “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 would have equal rights to take FMLA leave to care for the child.”

Leppink added that when an employer has questions about whether an employee’s relationship to a child is covered by the FMLA, the employer may require an 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 in situations such as in loco parentis where there is no legal or biological relationship.”

“No one who loves and nurtures a child day in and day out should be unable to care for that child when he or she falls ill,” said Secretary of Labor Hilda L. Solis in a statement. “No one who steps in to parent a child when that child’s biological parents are absent or incapacitated should be denied leave by an employer because he or she is not the legal guardian. No one who intends to raise a child should be denied the opportunity to be present when that child is born simply because the state or an employer fails to recognize his or her relationship with the biological parent. These are just a few of many possible scenarios. 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.”

As the interpretation makes clear, an uncle who is caring for his young niece and nephew when their single parent has been called to active military duty may exercise his right to family leave. Likewise, a grandmother who assumes responsibility for her sick grandchild when her own child is debilitated will be able to seek family and medical leave from her employer. And an employee who intends to share in the parenting of a child with his or her same-sex partner will be able to exercise the right to FMLA leave to bond with that child.

“This is a critical step in ensuring that children have the support and care they need from the persons who have assumed that responsibility,” Leppink said. “Nothing in the statute or regulations suggests that we should restrict the rights of various individuals who take on that very important role.”

Robin Shea, an attorney with Constangy, Brooks & Smith in Winston-Salem, N.C., said that the application of the FMLA to same-sex partners actings as parents “should be no surprise.” She said that the interpretation to some extent was “nothing more than a restatement of long-existing FMLA law.” But she said that “the DOL interpretation also says that a child can have an unlimited number of ‘parents’ for FMLA purposes, which arguably exceeds the spirit of the FMLA if not the letter.”

Source: Allen Smith, J.D.,