On Wednesday, the Department of Labor (DOL) issued a letter ruling extending the parental leave provisions of the Family and Medical Leave Act (FMLA) to same-sex partners, even those who are not the adoptive parents of the child in question. Under the ruling, an eligible employee can take 12 weeks of unpaid FMLA leave for the birth or adoption of a child by his/her same-sex partner. The employee may also take FMLA leave based upon the serious health condition of a same-sex partner's child.
Gay rights groups had pushed for this interpretation, which does not require a statutory amendment to the FMLA or issuance of new regulations. DOL will interpret the term "in loco parentis" under the current leave criteria to include persons with day-to-day responsibilities to care for or financially support a child, even in the absence of a biological or legal relationship.
This interpretation does not extend FMLA leave rights based upon the serious health condition of a same-sex partner, even in states that recognize same-sex marriage. The federal Defense of Marriage Act specifically prohibits DOL from extending leave rights in these situations. That law does not prohibit recognition of parental leave rights for same-sex partners.
The new interpretation takes immediate effect. Many companies' leave policies already allow employees to take time away from work in situations covered under the new interpretation. All employers should review their FMLA policies to make sure that the definitions of eligible reasons for FMLA leave encompass this new DOL position.