Submitted by Karyn Oyler, SPHR

As the number of same-sex families continue to grow, so do the discussions on how to best address employee issues such as medical coverage and FMLA.

On June 22, SHRM posted an article by Allen Smith entitled “DOL Interprets FMLA to Cover Same-Sex Parents”. The article recaps a new interpretation by the DOL’s deputy administrator Nancy J. Leppink.

The interpretation is called “Administrator’s Interpretation No. 2010-3” and is found on the DOL website in the Wage and Hour Division section.

As part of the interpretation, Leppink wrote a new clarification of “son & daughter” under the Family Medical Leave Act (FMLA). This new clarification affects employees and who will qualify for FMLA and who will not.

Under the new interpretation, “an employee who assumes the role of caring for a child receives parental rights to family leave regardless of the legal or biological relationship. The DOL interpretation applies to nontraditional families, including unmarried partners and families in the lesbian-gay-bisexual-transgender (LGBT) community”.

This new clarification allows employees to take up to 12 weeks of unpaid leave within a 12 month period to take care of a child even if the employee has no biological or legal relationship with the child. Employees may also take time off for adoptions or for the birth of a child as part of FMLA.

Employees are also covered even if the child has biological and/or legal parents covering for the child. For example, children of divorce whose parents have either remarried or now have a significant other. Parents, step-parents and significant others may now all qualify for FMLA.

The new interpretation allows the child to have an ‘unlimited’ number of‘parents’ for FMLA purposes.

‘Leppink added that when an employer has questions about whether an employee’s relationship to a child is covered by the FMLA, the employer may require an employee to provide reasonable documentation or statement of the family relationship. ‘A simple statement asserting that the requisite family relationship exists is all that is needed in situations such as in loco parentis where there is no legal or biological relationship.’’

For additional information on the article by Allen Smith, click the following link:
http://www.shrm.org/LegalIssues/FederalResources/Pages/FMLAParent.aspx

To read Nancy Leppink’s interpretation in its entirety, click the following link:
http://www.dol.gov/whd/opinion/adminIntrprtn/FMLA/2010/FMLAAI2010_3.htm