South Carolina Employment Law & Labor Law Firm - Employment & Labor Lawyers | Gignilliat, Savitz & Bettis - GS&B

 

The FMLA allows eligible employees to take up to 12 weeks of unpaid leave during any 12-month period to care for themselves or for a parent, spouse, son or daughter, or for the adoption or the birth of a son or daughter. The FMLA’s definition of “son or daughter” includes “a child of a person standing in loco parentis,” or in the place of a parent.  The new DOL interpretation holds that same sex partners have leave rights to care for their partner's children.  The DOL explained the interpretation was meant to ensure that “non-traditional families, including families in the lesbian-gay-bisexual-transgender community” will now be covered in a limited fashion under the federal FMLA.

 

Employers with questions about whether an employee’s relationship to a child is covered under FMLA may require the employee to provide reasonable documentation or a 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.  It should be noted that this change only applies to care of a son or daughter; it does not allow an employee to take FMLA leave to care for a same sex partner.  The interpretation also does not address an employee’s entitlement to take military FMLA leave for a son or daughter, which is determined by separate definitions.

 

If you have any questions about your organization’s obligations under this interpretation of the FMLA, please contact your employment counsel or contact us.