FMLA surprise: You now employ way more ‘parents’ than before

by on September 29, 2010 · 0 Comment POSTED IN: HR Cafe

FMLA alert: DOL has just radically expanded the number of employees who can take time off to care for children.

Huh? Don’t you have to be a parent to take leave to care for a newborn, or adoptee, or sick child? And wouldn’t that automatically limit the number of employees who can take leave to a maximum of two per child?

Nope. DOL issued an “administrator interpretation” of the FMLA regs that theoretically creates an almost unlimited supply of “parents” for the purpose of child care leave.

Take all leave requests seriously
For employers, this means you’ll have to take every request for such leave seriously, even if the connection between the person seeking it and the child doesn’t seem very direct to you.

Let’s look at the mechanics of the DOL rule first, before peering more closely at the implications.

The DOL announcement deals with the concept of in loco parentis — Latin for “in place of parents” — which is in the FMLA regs. The DOL has now both re-emphasized and broadened this concept.

In loco parentis gives rights to FMLA child care leave to people who aren’t biological parents, but who are acting as a child’s parents. There doesn’t have to be a legal relationship, either – only an intent to act as a parent and actions demonstrating the intent.

Here’s what’s new: Whereas in the past employees claiming to stand in loco parentis had to show they had both financial and caregiving responsibilities for the child, now they only have to show one or the other.

You may not consider this a radical shift, but when you look at the examples DOL gives you may change your mind. Here are a couple:

  • If a child’s biological parents are divorced and both have remarried, four people – the original parents and their new spouses – may all claim child care leave under the FMLA. The couple with whom the child lives may have all financial responsibility for him or her, but the other couple may share caregiving responsibilities, for instance.
  • If an employee provides day-to-day care for his or her unmarried partner’s child, the employee may have a claim on FMLA leave. And remember, that’s even if there is no legal or biological relationship with the child, and even if the employee doesn’t financially support the child.

In addition to broadening the scope of in loco parentis, DOL stressed that employers need to respect “the various parenting relationships that exist in today’s world.” This, DOL said, includes “families in the lesbian-gay-bisexual-transgender community, who often in the past have been denied leave to care for their loved ones.”

Two examples of nontraditional families where employees would have FMLA child care leave rights:

  • If a same-sex couple adopts a child, both individuals stand in loco parentis and have a claim on child care leave from their employer(s). This would include leave to bond with the child after its placement.
  • If a grandparent takes in a grandchild and assumes responsibility for raising the child because the parents cannot provide care, the grandparent, too, would have FMLA leave rights.

Labor Secretary Hilda Solis issued this caution for employers: “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.”

What can employers do to comply with these expanded child care leave rights? You may want to:

  • Review your procedures for determining employee eligibility in in loco parentis situations. DOL says the employee need only provide “a simple statement asserting that the requisite family relationship exists.”
  • Make sure any written FMLA policies include clear language covering in loco parentis.

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