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Domestic Partners and FMLA Leave

September 15, 2010

On June 22, the Department of Labor issued Administrator’s Interpretation No. 2010-3, clarifying whether parents who have no biological or legal relationship with a child may still be eligible to take leave under the Family and Medical Leave Act to care for him or her.

The FMLA entitles an employee to 12 weeks of job-protected leave for the birth or adoption of a 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 child of a person standing “in loco parentis.” FMLA regulations define in loco parentis to include individuals with day-to-day responsibilities to care for and financially support a child.

The Labor Department interpretation clarifies 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. 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.

If an employer has questions about whether an employee’s relationship is covered under the FMLA, it may require the 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. Administrator’s Interpretation No. 2010-3 (www.dol.gov/whd/opinion/adminIntrprtn/FMLA/2010/FMLAAI2010_3.htm).

Impact: Employers are advised to consult the Labor Department’s Administrator’s Interpretation No. 2010-3 when considering an FMLA leave of absence for an employee with no legal or biological relationship to a child, including, for example, gay and lesbian parents or stepparents who have not legally adopted the child.

Workforce Management, September 2010, p. 10 -- Subscribe Now!

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.