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Monday, June 28, 2010

Department of Labor Clarifies FMLA Definition of Son and Daughter


















Alabama@ Work
By Tommy Eden, Attorney

The U.S. Department of Labor on May 22 clarified the definition of "son and daughter" under the Family and Medical Leave Act (FMLA) to ensure that an employee who assumes the role of caring for a child receives parental rights to family leave regardless of the legal or biological relationship.

The FMLA allows workers to take up to 12 weeks of unpaid leave during any 12-month period to care for loved ones or themselves. The 1993 law also allows employees to take time off for the adoption or the birth of a child. The administrator interpretation issued by Nancy J. Leppink, Deputy Administrator of the Department's Wage and Hour Division, clarifies that these rights, which provide work-family balance, extend to the various parenting relationships that exist in today's world. This action is a victory for many non-traditional families, including families in the lesbian-gay-bisexual-transgender community (LGBT), who often in the past have been denied leave to care for their loved ones.

"No one who steps into 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 said Secretary of Labor Hilda L. Solis."

As the interpretation makes clear, an uncle who is caring for his young niece and nephew when their single parent has been called to active military duty may exercise his right to family leave. Likewise, a grandmother who assumes responsibility for her sick grandchild when her own child is debilitated will be able to seek family and medical leave from her employer. And an employee who intends to share in the parenting of a child with his or her same sex partner will be able to exercise the right to FMLA leave to bond with that child.

The administrator interpretation provides guidance to employers in applying the FMLA's provisions in the workplace and ensures that employees are aware of their rights. Under the act, covered employers must grant eligible employees up to 12 workweeks of unpaid leave during any 12-month period for the birth and care of a newborn child; to adopt or assume care for a foster child; to care for an immediate family member (spouse, child or parent) with a serious health condition; or to take medical leave due to a serious health condition.

Common Sense Counsel: having a properly drafted FMLA policy and the mandated forms is even more important than ever with this latest interpretation.


Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com