In a ruling issued last week, the United States Department of Labor (DOL) expanded the coverage of the Family and Medical Leave Act (FMLA) to include unmarried partners of parents.

Under the FMLA, individuals working for a company with 50 or more employees are entitled to up to 12 weeks per year of unpaid leave to care for a newborn or for a spouse, son or daughter with “a serious health condition”.  The definition of “son or daughter” under the FMLA includes not only a biological or adopted child, but also “a foster child, a stepchild, a legal ward or a child of a person standing in loco parentis.”  

The new ruling clarified that an employee who is the unmarried partner of a parent may be entitled to leave to care for his or her partner’s child if the employee stands in loco parentis for that child, even when there is no biological or legal relationship between the employee and the child. 

Pursuant to the DOL rule, an employee stands in loco parentis when that person has put himself in the situation of a “lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to legal adoption”.  In determining whether in loco parentis status exists, several factors should be considered such as the age of the child, the degree to which the child is dependent on the employee, the amount of support provided by the employee, and the extent to which common parenting duties are assumed by the employee.  However, there is no requirement that an employee who intends to assume the responsibilities of a parent establish that he or she provides both day-to-day care and financial support in order to be found to stand in loco parentis to a child. 

The DOL rule only provides for FMLA leave to care for a child and does not extend FMLA leave rights to care for an unmarried partner.  A bill is currently pending in the United States House of Representatives which would amend the FMLA to allow employees to take leave to care for a domestic partner or a same-sex spouse under applicable state law.

This newsletter is a publication of Nochumson P.C. and is intended for general information only. It should not be construed as legal advice with respect to any particular situation, and readers should not act upon information contained in this newsletter without first consulting an attorney. Copyright © 2009.