FMLA Covers Child-Care Leave for Same-Sex Domestic Partners

12/19/10

On June 22, 2010, 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 the rights of employees acting "in loco parentis" to a child.

In short, an employee may claim "in loco parentis" status if he/she intends to assume the responsibilities of a parent and provides either day-to-day care or financial support for the child. For the first time, then, coverage extends to a same-sex partner and does not require a biological or legal relationship to the child.