The FMLA Challenge: Reinterpreting the Law for a Diverse World

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Oct 27, 2010

By William R. Hanna

Nothing in the world of employment law remains static and unchanged – least of all, the Family and Medical Leave Act (FMLA).

Since 2008, both the U.S. Congress and the Department of Labor (DOL) have wrought significant changes to the 17-year-old law. In large part, these developments embody attempts by lawmakers to address issues important to families affected by military service and diverse or “non-traditional” families.

These recent amendments (impacting both the FMLA statute and associated regulations) and administrative interpretations underscore the importance to employers of ensuring that human resources personnel and leave administrators are fully aware of the changes and clarifications and that FMLA policies are updated and current.

Among the most substantial changes are statutory amendments addressing military family leave. Employees now are entitled to take up to 26 weeks of leave in a single, 12-month period to care for a spouse, child, parent, or next of kin who is a covered injured service member or veteran. In addition, employees may now take up to 12 weeks of “qualifying exigency leave” in connection with the call to duty of a spouse, parent or child in the military.

These rights were first established in January 2008 amendments to the FMLA as part of the 2008 National Defense Authorization Act. However, Congress further expanded these leave rights in late 2009 to include veterans within the scope of the “injured service member” leave protections, and to include within the scope of “qualifying exigency” leave family members of active duty members of the regular Armed Forces deployed to a foreign country. (Previously, only family members of those in the National Guard or Reserve could obtain qualifying exigency leave).

Other recent updates, changes and clarifications include comprehensive new FMLA regulations promulgated by the DOL effective in January 2009, which address the following:

  • Employee and employer notice obligations (regarding taking leave and eligibility and leave designation, respectively);
  • The definition of “serious health condition,” particularly concerning chronic conditions;
  • The medical certification process;
  • Recertification;
  • Return to work/fitness for duty issues;
  • Overtime and light duty considerations;
  • Increments of leave;
  • Bonuses and other incentive awards.

A reinterpretation of FMLA

Most recently, the DOL announced in June 2010 that it had reinterpreted the FMLA to address in loco parentis (in the place of parents) relationships, where no legal or biological relationship to the child is required.

The new interpretation, known as an “administrator’s interpretation,” stresses that workers with parental responsibilities in “non-traditional” families, including gays and lesbians, unmarried couples or grandparents caring for grandchildren, are eligible to take up to 12 weeks of unpaid time off to care for newborns, newly adopted or ill children, just as married, heterosexual workers have been able to do since the law was first passed.

Specifically, the DOL’s administrator’s interpretation states that in order to establish in loco parentis standing, an employee need only have either day-to-day responsibility or financial support responsibility for the child. This is definitely a broader construction of the test in the FMLA’s regulations, which state:

Persons who are “in loco parentis” include those with day-to-day responsibilities to care for and financially support a child….”

Reinterpretation for a diverse world

Societal notions of what constitutes a “family” have expanded beyond the traditional “nuclear” unit, consisting of a married father and mother and their biological children. “Family” is now understood to include single parents, grandparents raising grandchildren, blended families, unrelated and unmarried individuals living together, and same-sex couples, among others.

However, the definition of “family” for purposes of workplace benefits and regulations has not necessarily kept pace – leaving today’s diverse families sometimes struggling for benefits, medical leave and more. By the same token, these issues leave employers grappling with complaints, lawsuits, and rapid-fire changes in employment law.

As states nationwide contemplate workplace issues, such as whether or not to allow benefits for domestic partners – unmarried couples of the same or opposite sex – the federal government also has begun to reinterpret the definition of “family” as it applies to the American workplace. That’s what recently led the DOL to take a closer look at the FMLA’s “in loco parentis” provisions.

The June reinterpretation makes clear the DOL’s intention that the FMLA should be considered to have a broad reach when it comes to employees who have parental responsibilities but who happen to be in non-traditional families, including lesbian, gay, bisexual and transgendered (LGBT) employees, among others.

The ability to qualify for leave in connection with a child where the parental relationship is in loco parentis is not new. But the DOL’s interpretation of how in loco parentis standing is established sends a clear signal that the regulations are to be interpreted more broadly going forward than they have been in the past.

Although the clarification originally was publicized as extending FMLA rights to LGBT parents, the reality is that it benefits any employee with parental responsibilities in a non-traditional family, including but not limited to same-sex partners.

This change may be especially important, though, to LGBT parents in certain states where their adoption and foster care rights are limited (or have historically been limited). For example, Arkansas voters in November 2008 approved a statutory ban on adoption and foster parenting by unmarried individuals cohabitating with a sexual partner. And up until a court decision ruled it unconstitutional in September 2010, Florida expressly prohibited lesbian, gay, or bisexual people, whether as individuals or couples, from adopting.

It’s important to remember, though, that an eligible LGBT employee who is the parent of his or her own biological or adopted child always has had FMLA rights in connection with that child. And an eligible LGBT employee who stood in loco parentis to the biological or adopted child of their domestic partner also always has had FMLA rights in connection with that child — but employers, and even employees seeking leave, have sometimes been unaware of that fact.

What do employers need to know?

This new administrator’s interpretation means employers must consider each request for leave in connection with the birth, adoption or foster care placement of a child, or for the care of a child with a serious health condition, on a case-by-case basis.

Employers, and their HR personnel, should keep in mind that there is no requirement under FMLA that a parent needs to be part of a traditional, nuclear, or biological “mom-and-dad” household in order to be entitled to leave in connection with a child. With respect to what type of proof an employer may require, the DOL has said that a “simple statement” that an in loco parentis relationship exists, by way of the employee having day-to-day responsibility or financial support responsibility for the child, can be required.

Finally, despite some of the early publicity about “FMLA rights for same-sex partners,” the administrator’s interpretation does not extend FMLA leave rights to employees in connection with the serious health conditions of their same-sex partners. Although federal legislation has been introduced that would do so, it hasn’t made any substantial progress to date.

Considering the breadth and speed of the changes that have been made to the FMLA in just the past couple of years – continuing to this day – it is imperative that employers carefully audit their FMLA policies to ensure they’re appropriate under current law. They also need to educate their HR team to be aware of how such changes and reinterpretations may affect employees’ requests for FMLA leave.

Also, maybe even more importantly, employers need to remain alert for further changes in the future. It’s likely there are more changes and reinterpretations to come – and with them, the need for rapid, ongoing compliance efforts.

Employers can obtain additional information on the ever-changing FMLA and how it applies to their operations by discussing their unique situations with their legal counsel.