Beware – New FMLA Trap

Kegler Brown E-mployment Alert

Most employers know that the FMLA allows employees to take leave for (a) the birth or adoption of a “son or daughter,” (b) to care for a “son or daughter” with a serious health condition, or (c) to care for a “son or daughter” service member with a serious injury or illness. The FMLA Regulations define a son or daughter as a biological, adopted, or foster child, a stepchild, or a legal ward. The Regulations also include a child of a person who stands “in loco parentis,” which is defined to mean a person “with day-to-day responsibilities to care for and financially support a child.”

The Department of Labor recently issued an “Administrator’s Interpretation” that simply re-writes the Regulations. The Interpretation says that “and” really means “or:” “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.” [Wage-Hour Interpretation No. 2624 (FMLA 2010-3), June 22, 2010.]

The Interpretation clarifies the Department’s position that FMLA leave is available regardless of a legal or biological relationship to the child. According to a Wage-Hour Division news release,

“… an uncle who is caring for his young niece and nephew when their single parent has been called to active 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 samesex partner will be able to exercise the right to FMLA leave to bond with that child.”

The Department’s position is made clear by Secretary of Labor Hilda Solis:

“No one who loves and nurtures a child day-in and day-out should be unable to care for that child when he or she falls ill … No one who steps in to parent a child when that child's biological parents are absent or incapacitated should be denied leave by an employer because he or she is not the legal guardian. No one who intends to raise a child should be denied the opportunity to be present when that child is born simply because the state or an employer fails to recognize his or her relationship with the biological parent. These are just a few of many possible scenarios. The Labor Department’s action today sends a clear message to workers and employers alike: All families, including LGBT families, are protected by the FMLA.”

The result of this new interpretation will be that the scope of employees who must be permitted to take FMLA leave is dramatically expanded. It also means that it will be more difficult for employers to determine when and what employees may be eligible for family leave. And, while the total amount of FMLA leave available to a husband and wife working for the same employer is only 12 aggregate or combined weeks, a biological parent of a child and the child’s grandparent or same sex partner would not be so limited, and each would presumably be entitled to the full 12 weeks of FMLA leave.

Both the Administrator’s Interpretation and the news release are available on the WageHour Division website,