New FMLA ruling permits child-care leave for same-sex domestic partners

On Tuesday, June 22, the Department of Labor (DOL) issued a new interpretation of the Family and Medical Leave Act (FMLA) clarifying that employees are entitled to FMLA leave to care for the child of a same-sex partner (for the child's serious health condition, or to bond with a newborn or newly adopted child). The announcement is not a revision to the FMLA, but a new interpretation of the existing law which has always recognized rights of employees acting "in loco parentis" to a child. In short, an employee may now claim "in loco parentis" status if he/she "intends to assume the responsibilities of a parent with regard to a child" and provides "either day-to-day care or financial support for the child."

For the first time, the DOL has stated that this includes children of a same-sex partner even where there is no biological or legal relationship.

Because of this ruling, as many as 100,000 children in 50,000 families will now have access to a second parent’s time for dedicated care. ( As the online article states: “The ruling provides important support for legally vulnerable families at particularly stressful times for families.”

There is no word yet if this new interpretation will impact the mandatory FMLA labor law poster or related HR forms, but we will continue to monitor the situation closely. At this point, it looks like the poster or forms will not be updated because "in loco parentis" has always been included - it's just the underlying definition of that term that has changed. In the meantime, however, you can count on G.Neil to provide expert guidance on the new interpretation, and what it means for your workforce.

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