Who’s Your Daddy or Mommy for FMLA?

Friday, June 25, 2010

The Family and Medical Leave Act requires covered employers to grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons:

• For the birth and care of the newborn child of the employee;

• For placement with the employee of a son or daughter for adoption or foster care;

• To care for an immediate family member (spouse, child, or parent) with a serious health condition; or

• To take medical leave when the employee is unable to work because of a serious health condition.

On June 22, 2010, the US Department of Labor (DOL) released an interpretation clarifying the definition of in loco parentis(to stand in and act as a parent) under the Family and Medical Leave Act (FMLA). The DOL clarified that in order to meet the requirements of in loco parentis status, an employee need only establish one, but not both of the following two elements: (1) the employee provides day-to-day care for the child; or (2) the employee is financially responsible for the child. Since today’s families are often made up of step-parents, grand[-parents, domestic partners, and other non-related individual who provide child care, this clarification of the definition of "son and daughter" and who has parental rights under FMLA regardless relationship.

The interpretation was issued by Nancy J. Leppink the deputy administrator of the DOL's Wage and Hour Division. "This is a critical step in ensuring that children have the support and care they need from the persons who have who assumed that responsibility," said Leppink. The clarification extends FMLA rights to non-traditional families, which includes families with same sex partners. Secretary of Labor Hilda L. Solis was quoted as saying, "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,” The DOL's action on June 22, 2010 communicates the very strong message that in loco parentis status may be extended to those who provide day-to-day care for the child OR is financially responsible for the child regardless of relationships.

Clearly, blood relatives caring for grand children, nieces and nephews, cousins, and other children of blood, who provide day-to-day care for the child OR is financially responsible for the child while the biologic parent(s) is(are) in active military service could, most likely qualify for FMLA rights. Non-blood relatives are also afforded the same FMLA rights in situations of domestic partner, same sex or otherwise provided they can meet one of the two conditions noted above. FMLA rights conveyed under this interpretation extends to birth and illness allowing these non-traditional individuals who are in loco parentis to bond with the child.

This action adds a significant amount of effort to the employer’s administration responsibilities for FMLA. Organizations will need to establish policies and procedures to handle FMLA requests from non-traditional caregivers and the potential for appeals.

As with any organizational efforts directed at complying with Federal, state or local regulations, professional legal counsel should be retained.