On June 23, 2010, the Department of Labor publicly announced its position that benefits available to parents of newborns and newly-adopted children under the Family and Medical Leave Act (FMLA) may apply to same sex couples.

The Department “clarified” the definition of “son or daughter” under Section 101(12) of the FMLA to give family rights to people who assume the role of caring for a child, regardless of whether a legal or biological relationship exists with the child. Specifically, the Department confirmed that employees who intend to assume the responsibilities of a parent and provide either day-to-day care or financial support may be eligible for FMLA leave upon the child’s birth/adoption/foster placement or to care for the child if he or she becomes seriously ill. In other words, neither a biological or legal relationship is required to establish a parent/child relationship under the FMLA.

This interpretation leaves employers with no bright-line test for determining who is a “parent” under FMLA. This is especially true given that the Department of Labor noted that “a simple statement asserting that the requisite family relationship exists is all that is needed in situations such as ‘in loco parentis’ where there is no legal or biological relationship.” Under the interpretation, it appears that anyone can qualify as a parent if he or she provides day-to-day care or financial support to the child. For example, it appears that “parent” would include: (a) an employee who provides day-to-day care for his or her unmarried partner’s child (with whom there is no legal or biological relationship) but does not financially support the child; and (b) a same-sex partner who contributes equally to the financial support of the child but assumes no responsibility for day-to-day care.

Although the Department’s Interpretation is not law, it is a public announcement of the agency’s view on what the law is, which is entitled to some deference. However, the courts will ultimately decide what the law is and may take a narrower view, particularly in light of the Secretary of Labor’s public statement that the Department had “expanded” the reach of the Act, which is beyond an administrative agency’s power to do.