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Department of Labor Issues Guidance Expanding FMLA Leave for LGBT Parents

Yesterday, the Department of Labor announced new guidance that  permits an employee to take time off under the federal Family and Medical Leave Act (FMLA) to care for a child for whom he or she is acting as a parent, even if the employee does not have a legal or biological relationship to that the child.  The FMLA, passed in 1993, permits eligible employees to take up to twelve weeks of unpaid leave to, among other things, care for a spouse, son, daughter or parent with a serious health condition or attend to the birth or adoption of a son or daughter of the employee. The definition of “son or daughter” includes a “child of a person standing in loco parentis.” As with all federal statutes, however, the term “spouse” is governed by the definition of marriage under the Defense of Marriage Act, which is limited solely to the union of a man and a woman.    In announcing the new guidance, Secretary of Labor Hilda Solis stated:

“No one who loves and nurtures a child day-in and day-out should be unable to care for that child when he or she falls ill. No one who steps in to parent a child when that child’s biological parents are absent or incapacitated should be denied leave by an employer because he or she is not the legal guardian. No one who intends to raise a child should be denied the opportunity to be present when that child is born simply because the state or an employer fails to recognize his or her relationship with the biological parent. These are just a few of many possible scenarios. The Labor Department’s action today sends a clear message to workers and employers alike: All families, including LGBT families, are protected by the FMLA.”

HRC provided the Department of Labor with a recommendation [PDF] to clarify that the “in loco parentis” language in the FMLA’s definition of “son or daughter” explicitly includes the children of LGBT workers’ same-sex partners, even when those employees are unable to become legal parents under the laws of the states in which they live. This recommendation was part of HRC’s Blueprint for Positive Change, a series of policy actions that would be benefit LGBT people and their families which the Obama administration could institute without congressional action, and HRC worked with Department of Labor staff to move this important change forward.

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