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FMLA Child Care Leave Extended to Same-Sex and Other Non-Traditional Partners

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Harold M. SchwarzThe U.S. Department of Labor recently issued an administrative interpretation that will allow more of your employees to qualify for leave under the Family and Medical Leave Act (FMLA). Now, non-traditional parents, including the nearly 1 million employed adults in same-sex relationships, qualify for FMLA leave to care for a child with whom they have no legal or biological relationship.

The FMLA generally permits an eligible employee to take up to 12 workweeks of job-protected leave for the birth of “a son or daughter,” for placement of “a son or daughter” with the employee for adoption or foster care, and to care for “a son or daughter” with a serious health condition.  “Son or daughter” has always been defined as a “biological, adopted, or foster child, a stepchild, a legal ward,” or a child of a person standing in place of a parent.

Traditionally, employers have interpreted the FMLA as requiring child care leave only when the employee has a biological or legal relationship with the child. However, the change broadens the definition of those standing in place of a parent to include any person who assumes the obligations of a parental relationship, even when there is no legal adoption. Now, any employee providing day-to-day care or financial support to a child for whom they intend to assume parental status is entitled to FMLA leave. This includes employees helping to raise the child of their same-sex partner.

To ensure that requests for leave are properly handled under the new administrative interpretation, employers should consider reviewing and amending their existing FMLA policies and procedures. For assistance in reviewing or amending your policies and procedures, please contact your Stark & Knoll attorney, or Harold Schwarz at hschwarz@stark-knoll.com, (330) 572-1316.

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