E-Alerts

FMLA Child-Care Leave Extended To Domestic Partners And Others

The U.S. Department of Labor (“DOL”) recently issued an Administrative Interpretation (the “Interpretation”) that extends child-care leave under the Family and Medical Leave Act of 1993 (“FMLA”) to domestic partners and other providers who do not have a legal or biological relationship with the child.  The Interpretation achieves this by expanding the circumstances in which a person is deemed to be standing in loco parentis to a child.  (In loco parentis, Latin for “in place of a parent,” refers to a person who assumes the obligations of a lawful parent without the legal formalities.)

Although the DOL’s position is an interpretation and not a binding regulation, it will likely influence the way in which courts examine cases brought under the FMLA, and it will also challenge employers by potentially expanding the population of employees who may be eligible for FMLA leave.

Under the Interpretation, either day-to-day care or financial support of a child may be sufficient to establish an in loco parentis relationship if the employee intends to assume the responsibilities of a parent, regardless of the employee’s legal or biological relationship to the child.  The Interpretation departs from the previous requirement that both factors be present.  Consequently, the Interpretation extends eligibility for FMLA child-care leave to many domestic partners and others who, until now, were not considered “parents” under the FMLA.

According to the DOL, this is “a victory for many non-traditional families, including families in the lesbian-gay-bisexual-transgender community, who often in the past have been denied leave to care for their loved ones.”  The DOL further explained that “neither the statute nor the regulations restrict the number of parents a child may have under the FMLA.”

The FMLA provides eligible employees with up to 12 weeks of unpaid, job-protected 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.  The FMLA’s definition of “son or daughter” includes not only a biological or adopted child, but also a foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.

Whether an employee stands in loco parentis to a child is a fact-specific issue.  However, the Interpretation provides several examples of in loco parentis relationships that will suffice to establish FMLA eligibility:

• 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;
• Where a grandparent takes in a grandchild and assumes ongoing responsibility for raising the child because the parents are incapable of providing care; and
• Where an aunt assumes responsibility for raising a child after the death of the child’s parents.

The sole limitation that the Interpretation provides is that 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.

If an employer has questions about whether an employee’s relationship to a child is covered by the FMLA, the employer may require the employee to provide reasonable documentation of the family relationship.  Under existing DOL regulations, a “simple statement” by the employee may satisfy this request.

Significantly, while the Interpretation is expected to have the greatest impact in the context of domestic partnerships, it does not allow an employee to take FMLA leave to care for a domestic partner who is not considered a “spouse” under federal law.  Rather, the Interpretation applies only to leaves associated with the birth, adoption or serious health condition of a child.

In light of this expanded interpretation of the FMLA, we recommend that employers take the following steps:

• Update their FMLA compliance packages to ensure that the compliance process includes appropriate forms and guidance for an employee seeking leave based on in loco parentis status; and
• Train managers and human resources staff about this expansion of the FMLA and its associated implications.

The Firm offers an FMLA Compliance Package that includes all required FMLA forms, tailored to each employer’s specific policies and practices.  In addition, the Firm offers a three-hour “Nuts and Bolts of Compliance with the Amended FMLA” seminar that covers all aspects of the amended FMLA, the revised FMLA Regulations that went into effect in 2009, and this most recent Interpretation.  For more information, please contact me or Kathie Duffyat (978) 623-0900 or at kduffy@shpclaw.com.

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Please do not hesitate to contact me with any questions you may have about this new expansion of the FMLA and how to achieve compliance with it.