Employers will need to take a more liberal view of the definition of a "parent" under the Family and Medical Leave Act in light of a new Labor Department administrative interpretation.

The new interpretation will have widespread implications for blended families and same-sex couples, and will direct employers to be more discerning in determining "quasi-parental" status for those that may qualify for FMLA.

"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," said Secretary of Labor Hilda Solis. "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."

She continued: "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 lesbian, gay, bisexusal and transgender families, are protected by the FMLA."

Unlimited number of 'parents'

Building off current FMLA law, which states that a person serving "in loco parentis" may be eligible for up to 12 weeks of unpaid leave under parental "bonding" leave, as well as for the serious health condition of a child, the DOL adds that a child can have an unlimited number of "parents."

"Since it became law in 1993, the FMLA has always allowed leave for an employee who served 'in loco parentis' to a child, even if the employee had no biological or legal parental relationship with the child," explains Robin Shea, partner with national labor and employment law firm Constangy, Brooks & Smith, LLP.

"Therefore, under the law, a step-parent, or a sibling, or a grandparent, or even a family friend who filled the role of parent to the child would have been entitled to FMLA leave for the child's birth or serious health condition," Shea adds.

"The DOL interpretation clarifies that this would apply to same-sex partners who act as parents, which should be no surprise - this is a contemporary situation that seems to clearly fit within the original language of the statute and the regulations," she says.

Examples provide clarification

In the interpretation provisions expressing that a child can have an unlimited number of "parents" for FMLA purposes, DOL details an example of a heterosexual couple that divorces and each remarries.

In this instance, the child would have four "parents" without any qualification. Although this would be the case under traditional interpretation of the FMLA if the step-parents served "in loco parentis," it had not been determined to apply to step-parents who did not serve in that role.

According to Shea, "this provision is more likely to be challenged in court than the application to same-sex parents who actually do serve 'in loco parentis.'"

Additional examples include an uncle who is caring for his young niece and nephew when their single parent has been called to active military duty, allowing the uncle to exercise his right to family leave.

Similarly, 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, finally, an employee who plans to share in the parenting of a child with his or her same-sex partner will be able to exercise the right to FMLA leave to bond with that child.

If an employer has questions about whether an employee's relationship to a child is covered under FMLA, they may require the employee to provide reasonable documentation or statement of the family relationship.

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, says the DOL interpretation.

"Our advice under the FMLA has always been to inquire about in 'loco parentis' situations where an individual seeks FMLA leave to care for a child. Employers should continue to do so. But if an employer does not want to be a test case, the employer will need to be more liberal about finding the requisite 'quasi-parental' relationship than it may have been in the past," Shea recommends.

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