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) — ©; 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).

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