The Negative: Despite Improvements, FMLA Still Leaves Nontraditional Families Unprotected

By: Mariah L. Passarelli, Esq.

In our last blog entry, we discussed the newly expanded definition of “child” in the Family Medical Leave Act (FMLA). While this new change in the definition of “child” is certainly a welcome move in the right direction, a glaring inadequacy remains in the law – the definition of “spouse” covers only heterosexual married couples. This means that employees in a same-sex or unmarried heterosexual relationship do not qualify for FMLA leave to care for a partner who becomes seriously ill. The rule remains true no matter how long the couple has been in a committed relationship and whether the couple has children together.

This limited definition of “spouse” is caused, in part, by the federal Defense of Marriage Act (DOMA) which prohibits the interpretation of the word “spouse” in federal laws from being given any meaning other than a traditional male/female husband and wife pairing. Moreover, since the FMLA is a federal law, this exclusionary definition of “spouse” remains true even in situations where a gay or lesbian couple has been legally married in one of the states that permit same-sex marriage.

Thus, while progress has been made in updating the FMLA coverage to reflect the make-up of modern families, much remains to be done. Once again, until DOMA is relaxed or eliminated, it appears that the FMLA must remain in the column of rights not fully enjoyed by non-traditional couples and families.

The Positive: The FMLA and Unmarried Couples Rights to Medical Leave

By Lisa M. Passarello, Esq.

The Family and Medical Leave Act (“FMLA”) allows eligible employees who work for a company with fifty or more employees to take up to 12 weeks of unpaid leave for certain qualifying events. Events can include:

  • The birth, adoption or placement for foster care of a child.
  • Caring for a child with a “serious health condition”.

Regulations issued by the United States Department of Labor (“DOL”) provide FMLA Leavethat in determining who is a child, the adult did not have to be the biological parent or legal guardian. Rather, the regulations allowed someone who stood “in loco parentis” over the child to take leave under the FMLA. The phrase “in loco parentis” was defined as someone with day-to-day responsibility and financial responsibility for the child.

In “loco parentis” is commonly understood to refer to “a person who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to legal adoption. It embodies the two ideas of assuming the parental status and discharging the parental duties.” Niewiadomski v. U.S., 159 F.2d 683, 686 (6th Cir. 1947) (quotations omitted). Black’s Law Dictionary defines the term in loco parentis as “in the place of a parent.” Black’s Law Dictionary 803 (8th ed. 2004). “The key in determining whether the relationship of in loco parentis is established is found in the intention of the person allegedly in loco parentis to assume the status of a parent toward the child. The intent to assume such parental status can be inferred from the acts of the parties.” Dillon v. Maryland-National Capital Park and Planning Comm’n, 382 F. Supp. 2d 777, 787 (D. Md. 2005), aff’d 258 Fed. Appx. 577 (4th Cir. 2007) (citations omitted; emphasis in original).

The DOL Administrator’s interpretation that the regulations do not require an employee who intends to assume the responsibilities of a parent to establish that he or she provides both day-to-day care and financial support in order to be found to stand in loco parentis to a child. For example, where an employee provides day-to-day care for his or her unmarried partner’s child (with whom there is no legal or biological relationship) but does not financially support the child, the employee could be considered to stand in loco parentis to the child and therefore be entitled to FMLA leave to care for the child if the child had a serious health condition.

The same principles apply to leave for the birth of a child and to bond with a child within the first 12 months following birth or placement. For instance, an 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. Similarly, an 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, because the employee stands in loco parentis to the child.

The new interpretation will enable a broad range of individuals to take FMLA leave,
including relatives, unmarried heterosexual couples, and gays and lesbians, who share responsibility for a child, even if they have not acquired legal guardianship rights or adopted the child.

From the employee’s perspective, to assist your employer’s ability to determine that you are acting as a parent, you should be prepared to present one of the following (but need not present both):

  • Evidence showing financial responsibility for the child (e.g., evidence that you pay most of the bills for the home in which the child will live, the education the child receives, health insurance for the child, etc.)
  • Or evidence that you are responsible for most, or a substantial portion of the child’s daily needs (e.g., staying at home with the child during the day or evening, getting the child ready for school, preparing the child’s meals, etc.).

From an employer’s perspective, you need to ensure that your policies are written so that eligible employees are not inadvertently disqualified. Communicate new policies to employees, if needed, and train those managers responsible for complying with the FMLA so that they understand not only the new interpretations relating to the parent-child relationship, but also all of the new rules and regulations relating to the amendments to the FMLA.

Gift Tax Exemption

The current gift tax situation, which is of interest to any individual wishing to make transfers this year to avoid future estate tax, is particularly important to gay, lesbian and other unmarried couples and individuals who (under current law) lack the ability to use a marital deduction to keep the couple’s net worth intact for the survivor.

2012 is a very important year. This may be the last clear chance to use the temporarilThis tax may impact youy increased exemption from gift tax (currently up to $5,120,000 or over $10 million for a couple). Some types of gifts may take several months to implement. Accordingly, it is not too soon to act; for some it could soon be too late to get all steps, including appraisals, complete before year-end.

We hope that most individuals who should be making gifts this year are aware already of the unique situation of the gift tax law this year; not only does 2012 offer a unique opportunity to make major gifts, the state of the law after December 31 of this year is unpredictable and is not likely to improve. Some people may need help to identify ways to take advantage of the gift tax exemption without interrupting their lifestyles, and many need a reminder that those who wait too late will fail to complete their gifts while there is still time to use the enhanced exemption.

More Information: Techniques and factors that you may want to consider.

The Supreme Court Could Rule on Both DOMA and Prop 8

By Kate Paine, Esq.

Come next term, the United States Supreme Court may have, not one, but two, opportunities to determine whether sexual orientation is a suspect class afforded extra protection against discriminatory laws.

Heightened Scrutiny, Rational Basis, or Both?

The Supreme Court has been asked to review the opinions of both the First Circuit Court of Appeals (finding unconstitutional Section 3 of DOMA, which defines marriage for federal purpose as only those unions between one man and one woman as husband and wife, but does not address whether same-sex couples may marry in the first place) and the Ninth Circuit Court of Appeals (striking down as unconstitutional California’s Proposition 8, which does ban same-sex couples from marrying).

The Supreme Court receives approximately 8,000 requests to review cases per year and grants review in only one or two percent of those cases (approximately 80 to 150). However, because different courts have reached the opposite result regarding both the constitutionality of Section 3 of DOMA and the same-sex marriage issue, these two cases are prime candidates to be accepted for review by the Court.

Should the Supreme Court grant review in these cases and ultimately agree with the decisions of the Courts of Appeals, this will indeed be a great victory for same-sex marriage. Perhaps even more important than the outcome reached in these cases, however, will be the analysis by which the Court reaches its conclusion. This is because the Supreme Court can decide that DOMA and Prop 8 are unconstitutional while, at the same time, sidestepping the issue of whether sexual orientation, as a whole, is a suspect class afforded heightened protection from all laws that discriminate (not just those relating to marriage).

With respect to DOMA, as discussed in my last post, the Court could determine that, because there simply is no legitimate reason rationally related to the alleged goals sought to be achieved by preventing federal recognition of same-sex marriage, the Court does not need to decide whether all laws that discriminate based on sexual orientation should be subject to rational basis review or heightened scrutiny.

Why Two Courts Found Section 3 Unconstitutional

Regarding Prop 8 (and other state laws that ban same-sex marriage), the Court could again avoid the equal protection issue and instead base its decision on the fundamental right to marry. Indeed, the fundamental “freedom of choice to marry” was one of the bases for the Supreme Court’s 1967 opinion striking down state laws that prohibited interracial marriages.

More information on the Prop 8 appeal can be found here.