The Department of Labor Announces Interpretation Making FMLA Leave to Care For Children Available to Eligible Same-Sex Couples and Others

June 25, 2010

This week, the Department of Labor ("DOL") issued an Administrator Interpretation to clarify the definition of "son or daughter" under the Family and Medical Leave Act (FMLA) as it applies to an employee standing "in loco parentis" to a child. The Interpretation defines "in loco parentis" as follows: "a person who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to legal adoption. It embodies the two ideas of assuming the parental status and discharging the parental duties."

The Interpretation lists the following factors for consideration in determining "in loco parentis" status: the age of the child; the degree to which the child is dependent on the person claiming to be standing in loco parentis; the amount of support, if any, provided; and the extent to which duties commonly associated with parenthood are exercised.

The DOL's Interpretation clarifies that individuals standing "in loco parentis"who may or may not have a legal or biological relationship with a child but who have assumed the responsibilities of a parent have parental rights under the FMLA to attend the birth of a child, for bonding time after the birth or placement in adoption or foster care of a child, or to attend the serious health conditions of a child. This applies even if a biological parent, guardian or otherwise is available to care for the child.

The Interpretation specifically provides that "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 stands in loco parentis to the child."

The Interpretation gives additional examples and provides that "an uncle who steps-in to care for his young nieces and nephews when their single-parent has been called to active military duty may exercise his right to family leave [or]...a grandmother who assumes responsibility for her grandchildren when her own child is debilitated."

This guidance does not change the law's underlying requirements regarding coverage including but not limited to eligibility, reasons for leave, medical certification, documentation of relationship, notice or unpaid leave.

For more information regarding this client alert, please contact Sarah E. Newell or Matthew S. Raynes at 207-947-0111.

This paper is provided as general information, and is not a substitute for legal or other professional advice.