Category Archives: Sexual orientation

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) – (C); 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(c), 825.800.

(emphasis added).

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