On June 22, 2010, the U.S. Department of Labor issued Administrative Interpretation No. 2010-3 (link here) to clarify the definition of "son or daughter" under the FMLA. The new interpretation grants FMLA leave rights to individuals that assume the parental responsibilities for a child, regardless of whether that individual has a biological or legal relationship to the child. Although termed a clarification, this interpretation constitutes an important victory for "nontraditional" families, including those in the lesbian/gay/bisexual/transgender community, as it expands coverage to an entirely new class of employees.

How the DOL Interpretation Affects Employers?

The FMLA permits an employee to take up to 12 weeks of unpaid leave for the birth or placement of a son or daughter or to care for a son or daughter with a serious health condition. 29 U.S.C. § 2611(12); C.F.R. § 825.122(c). "Son or daughter" is defined to include a biological, adopted or foster child as well as a "stepchild, a legal ward or a child of a person standing in loco parentis." Under the 2010-3 interpretation, the Department has defined the in loco parentis doctrine to apply to all employees that intend to assume the responsibility for raising a child, even in the absence of a biological or legal relationship and even if the employee does not intend to provide financial support for the child.

The impact of this interpretation on employers is immediate -- if an employee makes a request for FMLA leave to care for the child of their same sex partner, it is likely that FMLA leave must be granted. This is irrespective of whether the laws of a particular jurisdiction recognize same sex relationships. However, this interpretation is not limited to same-sex couples. As the DOL makes clear, the protections of the FMLA in this context extend to grandparents, aunts, partners and any other employee who has assumed the responsibilities of raising a child. This expansive interpretation is highlighted by the DOL's note that the statute does not impose a restriction on the number of parents that a child can have under the FMLA, even if the child has biological parents in the home. Stepparents, grandparents or friends of the family can all potentially qualify for leave, provided they have assumed responsibility for raising the child.

Of course, an employer is still able to require the employee to provide "reasonable documentation or a statement of the family relationship." However, the DOL has cautioned that, upon a request to substantiate the relationship between the employee and child, an employee need only provide "a simple statement asserting that the requisite family relationship exists." See 29 C.F.R.§ 825.122(j). As a result of this interpretation, employers should promptly review their FMLA policies and practices to ensure that employees who have assumed day to day care for a non-biological child nevertheless receive appropriate FMLA leave rights.