On June 22, 2010, the U.S. Department of Labor’s Wage and Hour Division (WHD) issued an interpretation of the Family and Medical Leave Act which broadens the right of an employee to take FMLA leave for a child for whom the employee is acting in loco parentis (in the place of the parent). The WHD Opinion interprets the FMLA states that persons who are “in loco parentis” include those with day-to-day responsibility for the care and financial support of a child.
This ruling received quite a bit of press and was seen as victory for the Gay/Lesbian/Bisexual/Transsexual community because it opens the door for a same sex partner to take FMLA leave to care for the partner’s child. The ruling can also apply to opposite sex domestic partners (e.g., a live in boyfriend who provides care to a female employee’s child), a grandparent who is assuming responsibility for a child because the parents are unable to provide care, or another family member who assumes care responsibilities when the parents die.
The WHD opinion does not alter the FMLA’s definition of a spouse, so FMLA leave to care for a spouse with a serious health condition remains restricted to a husband or wife, as defined by federal law. The Defense of Marriage Act (DOMA), a federal law passed in 1996, defines “marriage” as a legal union between one man and one woman as husband and wife, and a “spouse” as a person of the opposite sex who is a husband or wife. Note, the DOMA was recently struck down by a Massachusetts federal court, so it is possible that the FMLA definition of “spouse” may change in the future.