Parental Leave Expanded Under FMLA

The July 2010 edition of New England In-House features Stephen Reed’s article on the FMLA’s expansion of parental leave rights to same-sex parents.

By Stephen Reed

On June 22, 2010, the U.S. Department of Labor clarified the definition of “son and daughter” under the Family and Medical Leave Act, effectively extending parental leave rights to individuals who provide day-to-day care or financial support to a child, regardless of the legal or biological relationship between the individual and the child.

The FMLA entitles eligible employees to take up to 12 weeks of unpaid leave during a 12-month period because of — among other things — the birth of an employee’s son or daughter, the placement with an employee of a son or daughter through adoption or foster care, and the need to care for a son or daughter with a serious health condition.

The FMLA defines “son or daughter” as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.”

The FMLA regulations define in loco parentis to include those individuals with day-to-day responsibilities to care for and financially support a child. Thus, an employee who has no biological or legal relationship with a child may nonetheless stand in loco parentis to the child and be entitled to FMLA leave.

Determining whether an individual stands in loco parentis is dependent upon the particular facts of each case. Factors to be considered include the child’s age; the degree to which the child depends on the person claiming to stand in loco parentis; the amount of support, if any, the individual provides; and the extent to which duties commonly associated with parenthood are exercised.

Click here to read the rest of Steve’s article in this month’s issue of New England In-House.