HR Management & Compliance

DOL Expands Family Leave for Same-Sex Parents

by Julie K. Athey

The U.S. Department of Labor (DOL) has released a new “administrative interpretation” (AI) that clarifies the circumstances in which an employee may take leave to care for a child for whom they act as a parent but aren’t legally recognized as such. As has been pointed out in numerous press reports over the last couple of days, the ruling appears to grant expanded Family and Medical Leave Act (FMLA) rights to gay and lesbian employees.

Although initial reports made it seem that the administrative interpretation would allow employees to take leave to care for a same-sex partner, the actual ruling is far less dramatic. The DOL explains that its intent is to assist employees and employers in understanding “how the FMLA applies when there is no legal or biological parent-child relationship.” In short, it addresses much broader issues than the circumstances in which an employee may take leave to care for a same-sex partner’s child.

What the Ruling Is About
The administrative interpretation explains the term in loco parentis in more detail than appears in either the FMLA or the existing regulations. In general, in loco parentis status arises when a person assumes the obligations of a parental relationship without going through the formalities of a legal adoption. The key is the employee’s intent to assume the status of a parent, which can be inferred from the employee’s actions with regard to the child.

Determining whether an employee stands in loco parentis to a child requires a consideration of multiple factors, including:

  • the child’s age;
  • the degree to which the child is dependent on the person claiming to be standing in loco parentis;
  • the amount of support provided, if any; and
  • the extent to which duties commonly associated with parenthood are exercised.

One particularly important point is that employees who care for a child on a daily basis will be considered in loco parentis even if they provide no financial support for the child.

What the Ruling Means
The practical significance of the guidance appears to be somewhat limited. The FMLA has long been interpreted as granting leave to employees who are in loco parentis to a partner’s child who suffers from a serious health condition. In that respect, the guidance doesn’t add much to the analysis.

In fact, there are really only three things about the administrative interpretation that are truly new:

  1. It specifically says employees may take leave when a same-sex partner gives birth or adopts a child (which was far from apparent under the FMLA or regulations).
  2. It entitles nonbiological gay and lesbian parents to the same bonding period as other parents of a newborn or newly adopted child (which also wasn’t previously apparent).
  3. It explains the types of documentation that employers may require as evidence of the relationship between the employee and the child to whom they claim to be in loco parentis.

Childbirth, adoption, and bonding. In the past, it has been unclear whether employers were required to grant leave to an employee whose same-sex partner was giving birth or adopting. The administrative interpretation makes it clear that they are.

In addition, it was previously unclear whether an employee was entitled to the same leave as other parents (i.e., up to 12 weeks of leave) to bond with the healthy newborn child of a same-sex partner. Such employees are not considered a legal parent unless they adopt their partner’s child, which is allowed in some states but can take some time. The administrative interpretation ensures that employees are allowed to take such leave.

Finally, the administrative interpretation clarifies that employees may take leave when their partner adopts a child — both for the adoption itself and for bonding — if they intend to act as the child’s parent. In many cases, same-sex couples who wish to adopt are prohibited from doing so as a “couple.” Their only option is for one of them to adopt as a single parent, and the other typically isn’t recognized as the child’s legal parent.

Again, the administrative interpretation ensures that employees may take leave in this situation even though they aren’t considered a legal parent of the child.

Documentation of relationship. Although the regulations allow employers to require documentation of a family relationship, they don’t specifically address the type of documentation that may be required for an in loco parentis relationship. The AI appears to state that employers may require no more than a “simple statement” that the requisite family relationship exists.

What the Ruling Doesn’t Do
The DOL declined to expand FMLA coverage to employees who request leave to care for a same-sex partner. From a legal perspective, that makes sense. The FMLA defines the term “spouse” as “a husband or wife, as the case may be.” A separate statute, the federal Defense of Marriage Act, prohibits federal laws that refer to “spouses” as being interpreted to include same-sex partners, marriages, or civil unions. Therefore, as the law stands now, the DOL simply doesn’t have the authority to grant FMLA leave rights to same-sex couples beyond the situations involving their partner’s children.

Read the entire administrative interpretation from the DOL

According to a recent SHRM report, nearly 40 percent of HR professionals granted employee leave that wasn’t justified because of confusion over the FMLA. Now you can get straight answers to the most puzzling FMLA dilemmas with the comprehensive reference tool FMLA Complete Compliance

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