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FMLA Rights for Nontraditional Families

The Family and Medical Leave Act of 1993 (FMLA) gives eligible employees the right to take unpaid, job-protected leave each year in certain situations, including:

  • For the birth, adoption or foster care placement of a child
  • To care for a newborn or newly placed child; or
  • To care for a child with a serious health condition

In 2010, the Department of Labor (DOL) issued an Administrator’s Interpretation Letter to clarify that these FMLA rights extend to the various traditional and nontraditional parenting relationships that exist in today's world.

Employers should review their FMLA policies and actual practices to ensure that they are in compliance with the leave rights for nontraditional families. Further, employers may require employees to provide reasonable documentation or statement of the family relationship if there is a question about whether the relationship is covered under the FMLA. However, a simple statement asserting that the requisite family relationship exists is all that is needed in situations such as in loco parentis where there is no legal or biological relationship.

FMLA LEAVE RIGHTS FOR PARENTS
In general, the FMLA allows workers to take up to 12 weeks of unpaid leave during any 12-month period to care for a son or daughter with a serious health condition or to take time off from work for the birth, adoption or foster care placement of a son or daughter.

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 under 18 years of age or incapable of self-care because of a mental or physical disability.” The term “in loco parentis” generally means “in the place of a parent.”
As family dynamics continue to change, many employees and employers were unsure of how the FMLA applies when there is no legal or biological parent-child relationship. This uncertainty led to the clarification of the definition of "son or daughter" and the application of the “in loco parentis” standard in 2010. These clarifications were designed to ensure that an employee who assumes the role of caring for a child receives parental rights to family leave regardless of the legal or biological relationship.

PROTECTIONS FOR NONTRADITIONAL FAMILIES
Congress intended the definition of “son or daughter” to reflect the reality that many children do not live in traditional ‘nuclear’ families with their biological father and mother. Increasingly, those who find themselves in need of workplace accommodations for 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.

The FMLA regulations define “in loco parentis” as including those individuals with day-to-day responsibilities to care for and financially support a child. Employees who have no biological or legal relationship with a child may nonetheless stand in loco parentis to the child and be entitled to FMLA leave. Whether an employee stands in loco parentis to a child will depend on the particular facts—no specific set of factors will be used to determine in loco parentis status.
An employee who intends to assume the responsibilities of a parent does not have to provide both day-to-day care and financial support in order to be found to stand in loco parentis to a child. This rule applies in situations involving leave for serious health conditions and for the birth or placement of a child.

EXAMPLES

  • Where an employee provides day-to-day care for his or her unmarried partner’s child (with whom there is no legal or biological relationship) but does not financially support the child, the employee could be considered to stand in loco parentis to the child and therefore be entitled to FMLA leave to care for the child if the child had a serious health condition.
  • An employee who will share equally in the raising of a child with the child’s biological parent would be entitled to leave for the child’s birth because he or she will stand in loco parentis to the child.
  • 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.
  • A grandparent who takes in a grandchild and assumes ongoing responsibility for raising the child because the parents are incapable of providing care, or an aunt who assumes responsibility for raising a child after the death of the child’s parents, can have an in loco parentis relationship with the child. These situations may or may not ultimately lead to a legal relationship with the child (adoption or legal ward), but no legal relationship is required to find in loco parentis status.
  • An employee who cares for a child while the child’s parents are on vacation would not be considered to be in loco parentis to the child.

PROTECTIONS FOR SAME-SEX SPOUSES
In 2013, the U.S. Supreme Court ruled that the federal Defense of Marriage Act’s (DOMA) ban on federal recognition of same-sex marriages was unconstitutional. Due to the Supreme Court’s DOMA decision, eligible employees in same-sex marriages are entitled to take FMLA leave to care for their spouses or family members. Eligible employees may take:

  • Leave to care for their same-sex spouse with a serious health condition;
  • Qualifying exigency leave due to their same-sex spouse’s covered military service; or
  • Military caregiver leave for their same-sex spouse.

In August 2013, the DOL issued Fact Sheet #28F to clarify the scope of an employer’s obligation to make FMLA available to same-sex spouses. This fact sheet provided that, under the FMLA, the term “spouse” includes a same-sex spouse if the marriage is recognized under the laws of the state in which the employee resides.

On Feb. 25, 2015, the DOL issued a final rule that expands the FMLA protections for same-sex spouses. Under final rule, eligible employees in legal same-sex marriages will be able to take FMLA leave in order to care for their spouses or family members, regardless of where they live. The final rule becomes effective on March 27, 2015.

The final rule expands the basis for an employee to take leave to care for a child of a same-sex spouse. Under the final rule, eligible employees are entitled to take FMLA leave to care for their stepchild (the child of the employee’s same-sex spouse) even if the in loco parentis requirement of providing day-to-day care or financial support for the child is not met. The final rule also entitles an eligible employee to take FMLA leave to care for a stepparent who is the same-sex spouse of the employee’s parent, regardless of whether the stepparent ever stood in loco parentis to the employee.

Source: U.S. Department of Labor

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