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Employee Rights: Family and Medical Leave Act (“FMLA”): Expansion of Rights to Same-Sex Partners

Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for above-the-bar-logo-no12.jpgOur New York Employment Law Attorneys previously wrote a Blog about employee rights and protections under the FMLA. In light of a recent ruling from the Department of Labor (“DOL”), this post is an update explaining the new implications of the ruling.

Given today’s changing society and the increase in non-traditional families, the DOL recently issued an Interpretation regarding the definition of “son or daughter.” This Interpretation is not a change to the existing Act but is a clarification of the Act. The new interpretation allows an eligible employee leave to care for his or her same-sex partner’s son or daughter because of a serious medical condition as well as for the birth or adoption of a child, even if the employee has no legal or biological connection to that child.

Under the FMLA, eligible employees can take up to 12 weeks of job protected leave to care for the birth, adoption, or a serious health condition of a son or daughter. 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.”

The DOL’s Interpretation clarifies the term “in loco parentis” which refers to a person who acts as a parent taking on the daily responsibilities and duties of caring and financially supporting a child. In loco parentis is a term generally used to refer to grandparents, uncles, aunts, brothers and sisters. The Interpretation now extends the term to an employee who acts or takes on the responsibilities of a parent but has no legal or biological relationship to the child.

The new Interpretation is a great win for children growing up in non-traditional homes who will now have an additional “parent” who can take up to 12 weeks of unpaid leave when their same-sex partner’s children are born, adopted or ill. According to the U.S. Census Bureau’s American Community Survey and the Bureau of Labor Statistics, 51,000 families will be affected by this Interpretation and about 102,000 children will benefit from the ruling.

If you are in a same-sex relationship and are involved in the care and support of your partner’s child, you may be eligible for job protected leave in the event of your partner’s child’s birth, adoption, or illness. Whether you’re an eligible employee is dependant on various factors and the facts of your specific case. If you are an eligible employee, the FMLA makes it illegal for your employer to discriminate or retaliate against you for exercising your rights. If you or anyone you care about has suffered from employment discrimination, please contact our experienced New York FMLA Attorneys at Villanueva & Sanchala.

Thank you for visiting our Blog. This blog provides general information and thoughts about various employment law issues primarily in the New York Tri-State area and occasionally in other areas. You are welcome to read the posts. However, do not construe any content on this blog as legal advice or the creation of an attorney-client relationship. Again, we provide the content only for informational purposes. You should not make decisions based information on our blog since the application of the law depends on the facts and each situation may be different. In addition, the law in most jurisdictions is different and changes constantly and we make no representations that any information on our blog has been updated. The Blog should not be used as a substitute for competent legal advice from an experienced employment law attorney in your state or jurisdiction.

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