USDOL Says FMLA Broadly Applies to Same-Sex Families... At Least Their Kids

The U.S. Department of Labor, the agency responsible for interpretation and application of the Family and Medical Leave Act, has issued an "Administrator's Interpretation" from its Wage & Hour Division (No. 2010-3), making clear its view that under the Family and Medical Leave Act, which applies to all employers with 50 or more employees, an employee is entitled to FMLA leave to take care of a sick child, even if the employee is not legally related to the child, so long as the employee stands "in loco parentis" to the child.

When Congress adopted the statute in 1993 - one of the earliest laws passed in the Clinton Administration - it noted that due to the emergence of non-traditional families in the U.S., many children are living in households with adults who have a parental relationship with them even though they are not legally related.  For example, step-parents come readily to mind.  But, in addition, many adults live in non-martial partnered relationships with children in circumstances where there is no legal relationship between one of the adults and the chilren, but that adult nonetheless is a "de facto" parent, bonding with the child and performing the role of a parent.  In this Interpretation issued on June 22, 2010, the DOL makes clear that it construed "in loco parentis" broadly to include any situation where an adult has that sort of a de facto parental relationship with a child.

This is significant, obviously, for same-sex couples whose own relationship is not recognized by the federal government (thank-you, Clinton Administration, for your legacy of DOMA!! - I mean, no thank-you).  Among the examples cited by the Labor Department in this Interpretation are same-sex couples who are raising children together.  In some cases, the child is related to both parents, either through adoption or some other relationship link.  (Sometimes, same-sex couples involve other family members as sperm or egg donors to produce children who are genetically related to both members of the couple.)  But in many cases the child is genetically or legally related only to one of the parents, or their state-law relationship (through a domestic partnership, civil union, or same-sex marriage) is not recognized by the federal government.  Nonetheless, according to this interpretation, if an adult may be said to be standing "in loco parentis" to a child, the FMLA applies to any need to take time from work to care for a sick child.

The Williams Institute from UCLA has already published its estimate that this newly-recognized (or at least newly-clarified) benefits under the FMLA may be of assistance to many thousands of children and their same-sex couple parents, perhaps even more than 100,000.

So this is another in the string of small but potentially significant ways in which the Obama Administration has been making interpretive/administrative decisions to expand equality rights for LGBT people.  In many cases, such expansions involve broader segments of the community, among whom LGBT couples may be a significant factor.  In all these cases, what the administration is doing is adjusting the interpretation of existing federal laws to reflect the reality of family life in the US.  Of course, they could do much more were it not for the legislative constraint of DOMA, which is why the administration should be more active in supporting pending legislation to repeal DOMA and substitute a broadly-phrased equality principle for it.  But thanks are due for these administrative steps.