Provisions of FMLA Extended to Gay Employees

June, 2010

The Department of Labor issued an updated interpretation of the Family Medical Leave Act (FMLA) clarifying the definition of "son or daughter” regarding employees taking FMLA 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. By broadening the definition of who is considered responsible for a "son or daughter,” the leave can be accessed by more than just the traditional mother or father, including same sex partners.

This interpretation addresses the concern that many family units do not have a traditional structure, and those who need to access leave to provide care may not be directly related to the child. The clarification was needed as many employers and employees were unsure of how to apply FMLA when there is no legal or biological parent-child relationship.

The interpretations stated that, "Increasingly, those who find themselves in need of workplace accommodation of their child care responsibilities are not the biological parent of the children they care for, but their adoptive, step, or foster parents, their guardians, or sometimes simply their grandparents or other relatives or adults.”

Employees can be eligible for parental leave or for leave for a child with a serious health condition under FMLA if they are "in loco parentis”, which is defined as having day-to-day responsibilities to care for and financially support a child. Employers must make leave available even if no biological or legal relationship to the child exists. Oregon’s Family Leave Act has recognized these situations even when FMLA did not, which means that there may be new situations where both leave times can be used concurrently.


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