Strategic HR Lawyer

The Wage and Hour Division of the US DOL has provided an interesting twist in its interpretation of how the Family and Medical Leave Act applies when there is no legal or biological parent-child relationship.

Generally, the FMLA defines a “son or daughter” as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is— (A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability.” And, according to the DOL, there has been confusion about whether employees who do not have a biological or legal relationship with a child may take FMLA leave for birth, bonding, and to care for the child. 

The DOL now takes the position that in drafting the FMLA, Congress intended the definition of “son or daughter” to reflect “the reality that many children in the United States today do not live in traditional ‘nuclear’ families with their biological father and mother.  Increasingly, those who find themselves in need of workplace accommodation of their child care responsibilities are not the biological parent of the children they care for, but their adoptive, step, or foster parents, their guardians, or sometimes simply their grandparents or other relatives or adults.” 

In loco parentis is commonly understood to refer to “a person who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to legal adoption.”  Whether an employee stands in loco parentis to a child is a fact issue dependent on multiple factors including the age of the child; the degree to which the child is dependent on the person claiming to be standing in loco parentis; the amount of support, if any, provided; and the extent to which duties commonly associated with parenthood are exercised.

Thus, employees who have no biological or legal relationship with a child may nonetheless stand in loco parentis to the child and be entitled to FMLA leave. 

Specifically, the DOL provides the following examples:

“Where an employee 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, the employee could be considered to stand in loco parentis to the child and therefore be entitled to FMLA leave to care for the child if the child had a serious health condition.  The same principles apply to leave for the birth of a child and to bond with a child within the first 12 months following birth or placement.  For instance, an employee who will share equally in the raising of a child with the child’s biological parent would be entitled to leave for the child’s birth because he or she will stand in loco parentis to the child.  Similarly, an employee who will share equally in the raising of an adopted child with a same sex partner, but who does not have a legal relationship with the child, would be entitled to leave to bond with the child following placement, or to care for the child if the child had a serious health condition, because the employee stands in loco parentis to the child.”

In addition:

“It should be noted that the fact that a child has a biological parent in the home, or has both a mother and a father, does not prevent a finding that the child is the “son or daughter” of an employee who lacks a biological or legal relationship with the child for purposes of taking FMLA leave.  Neither the statute nor the regulations restrict the number of parents a child may have under the FMLA.”

So, what’s an employer to do?  The DOL advises:

"Where an employer has questions about whether an employee’s relationship to a child is covered under FMLA, the employer may require the employee to provide reasonable documentation or statement of the family relationship.  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

We may find that this interpretation is reversed in future, perhaps more conservative administrations.

For more information follow this link to: USDOL Wage & Hour Division Administrator's Interpretation 2010-3: Clarification of the definition of “son or daughter” under Section 101(12) of the Family and Medical Leave Act (FMLA) as it applies to an employee standing “in loco parentis” to a child.

 

Posted By Diane Pfadenhauer In FMLA | Permalink

Yesterday President Obama signed into law the National Defense Authorization Act of 2010 which greatly expands the federal Family and Medical Leave rights of military personnel and their families.  Some of the notable changes for private sector employers include:

• Eligible employees will be able to take military caregiver leave for veterans who served in the regular Armed Forces, the Reserves within 5 years of the date the veterans undergoes medical treatment, recuperation, or therapy. This differs from current law in that military caregiver leave is now only available to care for current members of the Armed Forces, Guard, or Reserves.

• Military caregiver leave is expanded to cover aggravation of existing or preexisting injuries incurred in the line of duty while on active duty. Currently, DOL regulations exclude aggravation of existing injuries incurred in the line of duty while on active duty as a basis for taking military caregiver leave. When the serious injury or illness rises to the level of a subsequent injury or illness an employee will be entitled to take military caregiver leave for the same covered service member.

• Qualifying exigency leave is expanded to cover members of the regular Armed Forces who are deployed to a foreign country. Currently, qualifying exigency leave is only available for covered military members in the Reserves or Guard.

The U.S. Department of Labor and Office of Personnel Management will work with the Secretaries of Defense and the Veterans Administration in formulating regulations to carry out the amendments, so be careful!

Interestingly, it is unclear whether the legislation is effective immediately or whether it will become effective with the issuance of implementing regulations.

Thanks to Carl Bosland of the FMLA Blog for bringing this important change to our attention.

 

Posted By Diane Pfadenhauer In FMLA | Permalink

The US Department of Labor has issued a ervised FMLA poster incorporating the new regulatory changes.  The DOL's site also has some new information and forms which can immediately be used for compliance.

Follow these links:

Employer Response for Employee Request for Family & Medical Leave - Form WH-381

The DOL's Fact Sheet on the FMLA which can be used to provide general written information about the FMLA to employees who request it.

The Revised FMLA Poster - January 2009

Posted By Diane Pfadenhauer In FMLA | Permalink

The US Department of Labor recently issued its long-awaited Final Rule under the Family & Medical Leave Act.  The 200+ page document provides commentary and discussion regarding the proposed rules and the Departments rationale for the final rules provided.  There are significant changes to what already is a very technically complex and difficult statute.  To begin with, here is a very basic overview of some of areas of the law affected by the new rules.  There are a variety of training programs, seminars and overviews of these rules available as these changes are far too numerous and complex to include in a simple blog post.  We are working with our clients to help them understand these changes and modify their policies and practices accordingly.

For Military Personnel:

• Military Caregiver Leave (also known as Covered Servicemember Leave)
• Qualifying Exigency Leave
• Two new DOL certification forms that may be used by employees and employers to facilitate the certification requirements for the use of military family leave.

Changes to the Overall Regulations:

• Modification to penalty provisions
• Changes to the how Light Duty is treated in connection with FMLA
• Waivers of FMLA rights
• Six individual definitions of “Serious Health Condition”
• Substitution of paid leave for FMLA leave
• Attendance awards
• Employer and Employee Notice requirements
• The Medical Certification process
• Fitness for Duty Certifications

For more information on the Final Rule, follow these links:

An Overview:  DOL's Final Rule on Family and Medical Leave

The DOL's Final Rule Website

From the Federal Register:  The Family & Medical Leave Act of 1993; Final Rule

 

Posted By Diane Pfadenhauer In Employment Law , FMLA , Policies & Procedures | Permalink

The Department of Labor has available a poster reflecting the recent changes to the law affecting military personnel.  It's meant to be temporary and a supplement to the existing poster.  It's available on the DOL website:

National Defense Authorization Act / FMLA Poster Posted By Diane Pfadenhauer In FMLA | Permalink

The US Department of Labor recently issued proposed revised FMLA regulations.  The new regulations, subject to a comment period, comprise well over 400 pages - sufficient to cure insomnia.  Here are few changes of note while all the dust begins to settle:

-          Serious Health Condition - Where leave involves more than three consecutive days plus two health care provider visits, the two visits must occur within 30 days of the beginning of the period of incapacity (subject to certain exceptions). 

-           ‘Periodic treatment’ is defined as requiring treatment two of more times a year.

-          Includes separate regulations for leaves as a result of treatment for pregnancy, substance abuse and adoption/foster care. 

-          Eligibility - The DOL is looking to further define a break in service to determine the eligibility for FMLA.

-          Health Care Providers - Adds Physician Assistants as recognized health care providers.

-          Amount of Leave - Addresses how an employer should handle the situation when a holiday falls during the employee’s leave.

-          Paid Leave Substitution –Proposes  two substantive changes to the current regulations regarding paid leave:

o   The DOL clarifies that "substitute" means to run concurrently with respect to Paid time off. 

o   The proposed regulations seek to remove any distinction between sick leave and vacation leave in connection with an employer policy requiring substitution.

-          Return to Work & Bonuses - Under the new regulations, an employee must meet a specific “goal” in order to be provided a bonus.  If he fails to meet that goal due to FMLA leave, he can be denied the bonus as long as individuals who were on non-FMLA leave were also denied the bonus.

-          Notice Requirements - We should be expecting a new poster soon.

-          Employer Notice to Employee – in order to designate leave as qualifying for FMLA, the employer would now have 5 days instead of two.

-          Foreseeable Leave – Employers can require employees to explain why they failed to give notice at least 30 days in advance.  And, if not an emergency, if the need for the leave is foreseeable leave, the employee should provide notice of the need the same or next day.  With respect to unforeseen leave, the regulations indicate a narrowing of this exception.

-          Medical Certification - Employee consent to contact the health care provider to verify medical certification would no longer be required and the regulations would permit an employer to contact the employee's health care provider directly without having to use a health care provider. 

For those interested in an insomnia cure, this link to the USDOL FMLA Proposed Regulations should suffice as a fine cure.

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Posted By Diane Pfadenhauer In Employment Law , FMLA | Permalink

The Family & Medical Leave Act has been immediately amended to provide additional benefits to families of service members.   According to Michael Moore at the Pennsylvania Employment Law Blog,

FMLA-eligible employees will now be entitled to the following:

Caregiver Leave for an Injured Servicemember:  This benefit permits a “spouse, son, daughter, parent, or next of kin” to take up to 26 workweeks of leave to care for a “member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.”

Family Leave Due to a Call to Active Duty:   This benefit provides 12 weeks of FMLA leave for “any qualifying exigency (as the Secretary [of Labor] shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.”

The Department of Labor has the revised Family & Medical Leave Act available on its website.

Posted By Diane Pfadenhauer In FMLA | Permalink