FMLA now applies to leave for care of children by same-sex couples

The Unit­ed States Depart­ment of Labor recent­ly issued an Administrator’s Inter­pre­ta­tion 2010–3 which applies leave rights under the Fam­i­ly and Med­ical Leave Act to care of chil­dren by same-sex cou­ples. The US Depart­ment of Labor issued a press release to help explain the Administrator’s Inter­pre­ta­tion. In oth­er words, employ­ees in same-sex rela­tion­ships who qual­i­fy for leave under the FMLA will be enti­tled to pro­tect­ed leave for the qual­i­fy­ing care of their chil­dren.

As the DOL’s press release suc­cinct­ly says, the “FMLA allows work­ers to take up to 12 weeks of unpaid leave dur­ing any 12-month peri­od to care for loved ones or them­selves”. (29 U.S.C. 2612; 29 C.F.R. 825.200).

What is a “son or daugh­ter”?

The key issue was when the child fell into the def­i­n­i­tion of “son or daugh­ter” for the employ­ee seek­ing leave. When does the law rec­og­nize the child as the “son or daugh­ter” of the employ­ee?

Administrator’s Inter­pre­ta­tion 2010–3 sets out the statu­to­ry lan­guage, and same-sex cou­ples now have the nec­es­sary rela­tion­ship to the child through the sta­tus of being “in loco par­en­tis”, which more or less means some­one who “stands in the place” of the par­ent. Here is the dis­cus­sion in the Administrator’s Inter­pre­ta­tion:

The FMLA enti­tles an eli­gi­ble employ­ee to take up to 12 work­weeks of job-pro­tect­ed leave, in rel­e­vant part, “[b]ecause of the birth of a son or daugh­ter of the employ­ee and in order to care for such son or daugh­ter,” “[b]ecause of the place­ment of a son or daugh­ter with the employ­ee for adop­tion or fos­ter care,” and to care for a son or daugh­ter with a seri­ous health con­di­tion. See 29 U.S.C. § 2612(a)(1)(A) — ©; 29 C.F.R. § 825.200. The FMLA defines a “son or daugh­ter” as a “bio­log­i­cal, adopt­ed, or fos­ter child, a stepchild, a legal ward, or a child of a per­son stand­ing in loco par­en­tis, who is— (A) under 18 years of age; or (B) 18 years of age or old­er and inca­pable of self-care because of a men­tal or phys­i­cal dis­abil­i­ty.” 29 U.S.C. § 2611(12). See also 29 C.F.R. §§ 825.122©, 825.800.

(empha­sis added).

“Son or daugh­ter” applies to same-sex cou­ples

The Administrator’s Inter­pre­ta­tion then explains that “son or daugh­ter” was intend­ed in the FMLA to apply to chil­dren in non-tra­di­tion­al fam­i­ly set­tings:

Con­gress intend­ed the def­i­n­i­tion of “son or daugh­ter” to reflect “the real­i­ty that many chil­dren in the Unit­ed States today do not live in tra­di­tion­al ‘nuclear’ fam­i­lies with their bio­log­i­cal father and moth­er. Increas­ing­ly, those who find them­selves in need of work­place accom­mo­da­tion of their child care respon­si­bil­i­ties are not the bio­log­i­cal par­ent of the chil­dren they care for, but their adop­tive, step, or fos­ter par­ents, their guardians, or some­times sim­ply their grand­par­ents or oth­er rel­a­tives or adults.” See S. Rep. No. 103–3, at 22. Con­gress stat­ed that the def­i­n­i­tion was intend­ed to be “con­strued to ensure that an employ­ee who actu­al­ly has day-to-day respon­si­bil­i­ty for car­ing for a child is enti­tled to leave even if the employ­ee does not have a bio­log­i­cal or legal rela­tion­ship to that child.” Id.

In loco par­en­tis is com­mon­ly under­stood to refer to “a per­son who has put him­self in the sit­u­a­tion of a law­ful par­ent by assum­ing the oblig­a­tions inci­dent to the parental rela­tion with­out going through the for­mal­i­ties nec­es­sary to legal adop­tion. It embod­ies the two ideas of assum­ing the parental sta­tus and dis­charg­ing the parental duties.” Niewiadom­s­ki v. U.S., 159 F.2d 683, 686 (6th Cir. 1947) (quo­ta­tions omit­ted). Black’s Law Dic­tio­nary defines the term in loco par­en­tis as “in the place of a par­ent.” Black’s Law Dic­tio­nary 803 (8th ed. 2004). “The key in deter­min­ing whether the rela­tion­ship of in loco par­en­tis is estab­lished is found in the inten­tion of the per­son alleged­ly in loco par­en­tis to assume the sta­tus of a par­ent toward the child. The intent to assume such parental sta­tus can be inferred from the acts of the par­ties.” Dil­lon v. Mary­land-Nation­al Cap­i­tal Park and Plan­ning Comm’n, 382 F. Supp. 2d 777, 787 (D. Md. 2005), aff’d 258 Fed. Appx. 577 (4th Cir. 2007) (cita­tions omit­ted; empha­sis in orig­i­nal).

(empha­sis added). It then fol­lows that

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, would be enti­tled to leave to bond with the child fol­low­ing place­ment, or to care for the child if the child had a seri­ous health con­di­tion, because the employ­ee stands in loco par­en­tis to the child.

The press release sum­ma­rizes the effect of the Administrator’s Inter­pre­ta­tion to apply the FMLA leave rights to employ­ees in non-tra­di­tion­al parental rela­tion­ships, includ­ing same-sex cou­ples:

As the inter­pre­ta­tion makes clear, an uncle who is car­ing for his young niece and nephew when their sin­gle par­ent has been called to active mil­i­tary duty may exer­cise his right to fam­i­ly leave. Like­wise, a grand­moth­er who assumes respon­si­bil­i­ty for her sick grand­child when her own child is debil­i­tat­ed will be able to seek fam­i­ly and med­ical leave from her employ­er. And an employ­ee who intends to share in the par­ent­ing of a child with his or her same sex part­ner will be able to exer­cise the right to FMLA leave to bond with that child.

(empha­sis added).

Employ­ers will obvi­ous­ly want to review their FMLA leave poli­cies in light of Administrator’s Inter­pre­ta­tion 2010–3Click here for the DOL’s Com­pli­ance Assis­tance page for the FMLA.

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Drew M. Capuder

Publisher of Drew Capuder's Employment Law Blog. Lawyer with more than 29 years experience, focusing on employment law, commercial litigation, and mediation. Extensive trial and appellate experience in state and federal courts. Call Drew at 304-333-5261
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