FMLA Applies to Leave to Care for Same Sex Partner's Child
The U.S. Department of Labor ("DOL") has published an Administrator's Interpretation (available here) to address the question of whether an employee is entitled to leave under the Family Medical Leave Act ("FMLA") to care for the child of a same sex partner. The FMLA entitles an eligible employee to take up to 12 weeks of unpaid leave for, among other things, the birth and care of the employee's newborn child, for placement of a son or daughter with the employee for adoption or foster care, and to care for a son or daughter with a serious health condition. Under the FMLA, employees who have no biological or legal relationship with a child may still be considered to stand in "loco parentis" to the child and be entitled to leave to care for the child. An in loco parentis relationship can be demonstrated either by provision of day-to-day care for the child, or provision of financial support to the child. In the Interpretation, the DOL makes it clear that same sex partners can establish the requisite in loco parentis relationship. The Interpretation states, "[f]or 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 Interpretation further states that the same applies for "an employee who will share equally in the raising of a child with the child’s biological parent" and "an employee who will share equally in the raising of an adopted child with a same sex partner, [but] does not have a legal relationship with the child." The DOL also notes in the Interpretation that "the fact that a child has a biological parent in the home, or has both a mother and a father, does not prevent a finding that the child is the 'son or daughter' of an employee who lacks a biological or legal relationship with the child for purposes of taking FMLA leave."
It is important for employers to be aware that the FMLA and California child care leave laws are not limited to traditional definitions of family and parentage. When faced with a request for child care leave, employers need to make an individualized fact-based determination regarding the relationship between the employee and the child.