Professional Service Agreement

Interpretation of FMLA Expands Protection for Non-Traditional Families

September 01, 2010

As if the Family and Medical Leave Act (FMLA) were not complex enough, it just got a little more complicated. The U.S. Department of Labor (DOL) has issued an Administrator's Interpretation that clarifies the definition of "son" and "daughter" under FMLA 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.

The DOL interpretation expands applicability of FMLA to nontraditional families, including unmarried partners and families in the lesbian-gay-bisexual-transgender community.

The DOL Deputy Administrator stated that the fact that a child has both a mother and father would not prevent a finding that a child is the "son" or "daughter" of an employee who lacks a biological or legal relationship with the child. "Neither the statute nor the regulations restrict the number of parents a child may have under FMLA. For example, where a child's biological parents divorce, and each parent remarries, the child will be the "son" or "daughter" of both the biological parents and the stepparents, and all four adults would have equal rights to take FMLA leave to care for the child."

As the interpretation makes clear, an uncle who is caring for his young niece and nephew when their single parent is called to active military duty may exercise his right to family leave. A grandmother who assumes responsibility for her sick grandchild when her own child is debilitated will be able to seek FMLA leave from her employer. Likewise, an employee who intends 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.

The Deputy Administrator stated that when an employer has questions about whether an employee's relationship is covered by FMLA, the employer may require an 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' (in place of a parent) where there is no legal or biological relationship."

These expanded FMLA rights are effective immediately. You will need to amend your FMLA handbook policy to reflect this change. Contact SESCO if you have questions or need assistance with FMLA issues. We also have FMLA forms available, as well as our FMLA Administrative Manual. You may order these items from our website – or by calling us at 423-764-4127.