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Employment Law Blog

DOL Expands Coverage Under FMLA To Include Same-Sex Partners (Among Others)

The Family and Medical Leave Act of 1993 (“FMLA”) provides eligible employees with up to 12 weeks of job protected leave each year for certain covered events, including for the birth or placement of a child for adoption, or because of a child’s serious health condition.  More information regarding FMLA can be found on this site here.

On June 22nd, the Department of Labor (“DOL”) expanded coverage under FMLA as it applies to a person standing “in loco parentis” to a child.  According to the DOL, there is much confusion as to the question whether FMLA applies when there is no legal or biological parent-child relationship.   The FMLA regulations define “in loco parentis” as including those with day-to-day responsibilities to care for and financially support a child. 29 C.F.R. § 825.122(c)(3).

According to the DOL’s most recent interpretation, the regulations do not require an employee who intends to assume the responsibilities of a parent to establish that he or she provides both day-to-day care and financial support in order to be found to stand in loco parentis to a child.   For example, according to the DOL, examples of persons standing “in loco parentis” who would be entitled to leave under the FMLA, include “an uncle who is caring for his young niece and nephew when their single parent has been called to active military duty,” “a grandmother who assumes responsibility for her sick grandchild when her own child is debilitated,” and “an employee who intends to share in the parenting of a child with his or her same-sex partner.”

Marc Smith