If you’re like us, you’ve been bombarded with articles and blog posts and e-mail alerts claiming that a recent Administrator’s Interpretation issued by the Department of Labor has greatly expanded the class of people who are allowed to take FMLA leave to care for a child. These articles, including the DOL’s June 22, 2010 press release, suggest that employees who care for a child as a parent are now entitled FMLA leave even if that employee has no biological or legal relationship to the child – as if that hasn’t already been the case for the last 15 years.
The fact is that since the DOL issued its FMLA regulations in April 1995, it has been clear that individuals who stand in loco parentis (Latin for “in the place of a parent”) to a child are entitled to FMLA leave regardless of any biological or legal relationship to the child. Indeed, the regulations issued in 1995 explicitly define “parent” as “a biological parent or an individual who stands or stood in loco parentis…” and define “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 regulations go on to clarify the meaning of in loco parentis:
Persons who are “in loco parentis“include those with day-to-day responsibilities to care for and financially support a child or, in the case of an employee, who had such responsibility for the employee when the employee was a child. A biological or legal relationship is not necessary.
(emphasis added)
So, since 1995, it has been more than clear that a biological or legal relationship to a child was not necessary in order to take FMLA leave for that child. Why the DOL is issuing a press release with the tag line “Interpretation is a win for all families no matter what they look like” is beyond me. The only thing I can think of is that, since the current administration has been a large disappointment to the LGBT community who hoped to have seen by now the end of “Don’t Ask Don’t Tell” and the elimination of the Defense of Marriage Act, the DOL is issuing press releases like this one to make it look like the government has actually accomplished something for nontraditional families.
The DOL’s Administrator Opinion did make one change to the FMLA regulations, however – the opinion stated that where the regulations state that in loco parentis individuals include “those with day-to-day responsibilities to care for and financially support a child,” this is to be interpreted as including “individuals with day-to-day responsibilities to care for a child” and “individuals with day-to-day responsibilities to financially support a child.” In other words, one individual does not need to both care for and financially support a child in order to stand in loco parentis – doing either will suffice. So perhaps technically the group of people who are entitled FMLA has been expanded a tiny bit, but certainly not as much as all the recent hype suggests, and certainly not enough for the DOL to go around slapping itself on the back and blowing its horn about how much they’re doing for nontraditional families.