Much Ado About Nothing?
DOL Clarifies When Same-Sex Partners May be Parents Under the FMLA

Recently, the blogosphere and several mainstream media sources—including an Associated Press report in the Washington Post—buzzed with news of a new policy interpretation forthcoming from the U.S. Department of Labor's Wage and Hour Division (WHD). Anonymous sources spurred speculation that the WHD would announce the extension of full Family and Medical Leave Act (FMLA) benefits to same-sex partners. Such an announcement would have represented a sea-change in the WHD's interpretation of the FMLA.

But when the WHD broke its silence, its newly-announced position proved less momentous than early reports suggested. Indeed, the WHD's new guidance falls well short of extending full FMLA benefits to same-sex partners.

On June 22, 2010, the WHD issued an administrative interpretation clarifying the circumstances under which an employee stands in loco parentis to a "son or daughter" within the meaning of Section 101(12) of the FMLA. Instead of breaking new ground, as some expected, the WHD's interpretative guidance for the most part adheres to existing FMLA regulations.

The FMLA entitles eligible employees to take up to 12 work weeks of unpaid, job-protected leave under a variety of circumstances. Reasons for which an employee may take FMLA leave include (but are not limited to) the following:

1. because of the birth of the employee's son or daughter and in order to take care of such son or daughter;

2. because of the placement of a son or daughter with the employee for adoption or foster care; or

3. in order to care for a son or daughter with a serious health condition.

The FMLA's broad definition of "son or daughter," found in Section 101(12), includes, in addition to biological children, adopted children, foster children, stepchildren, legal wards, or "the child of a person standing in loco parentis, who is a) under 18 years of age; or b) 18 years or older and incapable of self-care because of a mental or physical disability." (Emphasis added.)

The WHD explains that under existing FMLA regulations, an employee stands in loco parentis to a child where the employee cares for the child on a day-to-day basis, financially supports the child, or both. Among the new examples provided by the WHD is "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 . . . ." Under these circumstances, the WHD considers the employee to stand in loco parentis within the meaning of Section 101(12) of the FMLA. While this example will certainly raise some eyebrows, it does not represent a significant legal departure from existing FMLA regulations.

Other less controversial examples provided by the WHD include a grandparent who "assumes ongoing responsibility" for raising a child due to the parents' inability to provide care and "an aunt [who] assumes responsibility for raising a child after the death of the child's parents."

Despite the WHD's broad interpretation of the in loco parentis relationship, it cautions that the existence of such a relationship always depends on the particular facts at hand. The WHD also notes that "an employer may require an employee to provide reasonable documentation or statement of the family relationship," but explains that a "a simple statement asserting that the requisite family relationship exists" will suffice.

Please direct any questions about this administrative interpretation to Tami Earnhart of Ice Miller's Labor and Employment Group.

June 25, 2010

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.