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NEWS
Nontraditional Parents Entitled to FMLA Leave07.09.2010The Department of Labor (DOL) recently issued Administrator Interpretation No. 2010-3 broadening the definition of “son or daughter” under the Family and Medical Leave Act (FMLA). The clarification allows employees who assume the responsibilities of a parent—by providing either day-to-day care for a child or financial support for the child—to be granted leave rights despite the lack of a biological or legal relationship between the individual and the child. In effect, the new interpretation extends rights to today’s diverse parenting relationships and is touted as “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.” Notably, neither the FMLA nor its regulations restrict the number of parents a child may have under the FMLA.
In Loco Parentis
This recent interpretation magnifies Congress’ intent that employees with no biological or legal relationship with a child may nonetheless stand in loco parentis to the child and be entitled to FMLA leave. As Secretary of Labor, Hilda L. Solis, stated, “no one who steps in to parent a child when that child’s biological parents are absent or incapacitated should be denied leave by an employer because he or she is not the legal guardian.” Solis added, no individual who intends to raise a child should be denied the opportunity “simply because the state or an employer fails to recognize his or her relationship with the biological parent.”
To stand in loco parentis, an individual does not need to provide both day-to-day care and financial support for the child. Therefore, any employee who either provides daily care or financial aid for a child, even if that employee is the partner, grandparent, relative or friend, is considered to have assumed the responsibilities of raising the child and is entitled to take leave if they meet the FMLA qualifications. Effect on Employers
Under the FMLA, covered employers must grant eligible employees up to 12 workweeks of unpaid leave during any 12-month period for any of the following reasons:
1) the birth and care of a newborn child;
2) to adopt or assume care for a foster child; 3) to care for an immediate family member (spouse, child or parent) with a serious health condition; or 4) to take medical leave due to a serious health condition. An employer who questions whether an employee’s relationship to a child is covered by the FMLA may require the employee to provide reasonable documentation or a simple statement that the requisite family exists, including those in loco parentis where no legal or biological relationship exists. Whether an employee stands in loco parentis to a child will depend on the particular facts.
Employers must be cognizant going forward that more employees may now be entitled to take FMLA leave. We anticipate that the California Family Rights Act will similarly be amended at some future date. However, in the interim, employers will be required to grant federal FMLA leave to eligible employees who do not have a biological or legal relationship with a child but who stand in loco parentis. |