Jun 22, 2010

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DOL Extends Parental FLMA Rights to Gay & Lesbian Couples

The Department of Labor’s Wage and Hour Division has issued an Administrator’s Interpretation extending the right to parental leave under the FMLA to the partners of gay and lesbian parents.

The interpretation focuses on language in the FMLA that allows eligible employees 12 weeks unpaid leave to bond with or care for “a son or daughter”. The Act defines “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….”1

That last little bit of Latin means anyone who has day-to-day responsibilities for a child, but hasn’t gone through a formal process to legalize a parental relationship. This definition exists regardless of the existence or presence of the child’s biological parents.

So, the Administrator says:

“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.”

It’s important to note that, while the granting of same-sex rights is clearly the lead story here, this interpretation has many more implications for those caring for children. Other examples the Administrator gives include:

• A grandparent that has assumed ongoing responsibility for a grandchild;
• An aunt assumes responsibility for raising neices and nephews following the death of the children’s parents;
• Any employee sharing responsibilities equally with the child’s biological parent (including live-in, long-term girlfriends/boyfriends, presumably).

1. 29 U.S.C. Sec. 2611 [↩]