Registered Domestic Partners Gain Clarification of Rights to FMLA Leave
— August 2010





Last month the Department of Labor issued guidance to clarify the definition of "son or daughter" under the Federal Family Medical Leave Act ("FMLA") as it applies to an employee taking FMLA protected leave for the birth or placement of a child, to care for a newborn or newly placed child, or to care for a child with a serious health condition. While many had suspected the Obama Administration would expand FMLA rights to lesbian and gay registered domestic partners to allow them leave to care for each other in the event of a serious health condition, the DOL made a more limited expansion focusing on FMLA rights as they pertain to the birth or adoption of a child. The regulations define a son or daughter as a biological or adopted child, foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis (in the place of a parent), who is under the age of 18 or 18 years of age or older and incapable of self-care because of mental or physical disability. The FMLA has long been interpreted as granting leave to employees who are "in loco parentis" to a domestic partner's child — which means that they care for and/or financially support the child on a regular basis. The in loco parentis standard allows employees to take leave to care for a domestic partner's child who suffers from a serious health condition.

While the DOL found that there are many factors to determine if an employee is standing in loco parentis to a child, the guidance now makes clear that there is no requirement for a biological or legal relationship with the child to stand in loco parentis.

Consequently, such leave can be extended to domestic partners or other family members who provide either day-to-day care and/or financial support for the child. As an example, the DOL stated, ?n employee who will share equally in the raising of a child with the child's biological parent would be entitled to leave for the child's birth because he or she will stand in loco parentis to the child.?Likewise, ?n 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?

Further the DOL does not interpret the regulations as restricting on the number of parents a child may have. For instance, if a child's biological parents are divorced and remarried, all four parents (biological and step-parents) are entitled to FMLA leave related to the child.

The new guidance clarifies that employees will now be allowed to take job protected FMLA leave to not only be with a partner who is giving birth but also bond with a partner's healthy newborn or newly adopted child.

Despite this new guidance employers operating in California may be subject to even more stringent interpretation based on California's Family Rights Act ("CFRA").

For more information or for a complete analysis of your company's leave policies please contact our Employment Law Department at (213) 480-1900.


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