Tuesday, June 22, 2010

FMLA for Same Sex Parents

Big news on the Family and Medical Leave Act (FMLA) front today. As explained by a Department of Labor (DoL) press release:
[A]n 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.
Same sex partners may also be entitled  to FMLA leave to care for a child with a serious health condition.

The DoL accomplished this feat through Administrator's Interpretation No. 2010-3. The FMLA defines "son or daughter" to include "a child of a person standing in loco parentis." The DoL's analysis concluded:
Based upon a thorough examination of the relevant factors, it is the Administrator’s interpretation that either day-to-day care or financial support may establish an in loco parentis relationship where the employee intends to assume the responsibilities of a parent with regard to a child.
And how does this affect homosexual employees? Well, for example:
[A]n 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.
Be careful employers, it's not just for same sex partners! The interpretation specifically contemplates grandparents and aunts, but the bottom line is that "In all cases, whether an employee stands in loco parentis to a child will depend on the particular facts (emphasis added)."

It might be time to dust off that FMLA policy to make sure you've got in loco parentis covered.

See also, Jon Hyman on Ohio Employer's Law Blog - DOL permits FMLA leave for gay parents (and others too)

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.