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

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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.

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