The United States Department of Labor late today issued a new interpretation of what a "son or daughter" is under the federal Family and Medical Leave Act (FMLA) to make it clear that an "employee who assumes the role of caring for a child receives parental rights to family leave regardless of the legal or biological relationship."  You can download the administrative interpretation here. 

The practical effect of the regulation is that "non-traditional families", as the Department has termed them, " including families in the lesbian-gay-bisexual-transgender community, who often in the past have been denied leave to care for their loved ones", will now be covered in a limited fashion under the federal FMLA.

According to the Department’s press release:

"No one who loves and nurtures a child day-in and day-out should be unable to care for that child when he or she falls ill," said Secretary of Labor Hilda L. Solis. "No one who steps in to parent a child when that child’s biological parents are absent or incapacitated should be denied leave by an employer because he or she is not the legal guardian. No one who intends to raise a child should be denied the opportunity to be present when that child is born simply because the state or an employer fails to recognize his or her relationship with the biological parent. These are just a few of many possible scenarios. The Labor Department’s action today sends a clear message to workers and employers alike: All families, including LGBT families, are protected by the FMLA."

How can the DOL do this, you might ask? Well, the statute already provides coverage to children of a person standing "in loco parentis". Because the DOL has the authority to interpret this phrase, the DOL has now said that so long as a person is acting as the child’s parent, that person can be covered under the FMLA.  As the DOL notes in the guidance, "There is no specific set of factors that, if present, will be considered to be dispositive in determining in loco parentis status."

A few items of note, particularly to Connecticut employers:

  • This only applies for care of a son or daughter; it does not allow an employee to take FMLA leave to care for a gay spouse or civil union partner.  
  • Connecticut already had this protection in place (and in fact, it’s broader) under the state FMLA law. 
  • Many employers also already cover this type of leave and have their own FMLA policies that cover various types of "non-traditional families", including civil unions.  Employers have been free to adopt a FMLA policy that is broader than that required by law.
  • This only affects traditional FMLA leave; as the DOL is quick to note, this does not address an employee’s entitlement to take military FMLA leave for a son or daughter, which is determined by separate definitions. See 29 C.F.R. Sec. 825.122(g),(h).
  • There are other implications as well. Because of divorces, the new DOL interpretation could allow a child to have four "parents" under the statute if each parent in the divorce remarries, for example.  All that is required is a "simple statement [from the alleged parent] asserting that the requisite family relationship exists." 

So, while this may cause a stir around the country, I anticipate the impact on employers in Connecticut to be fairly minor.