July 7, 2010  |  Issue No. 86
		Jeff and Erin are lawyers with Thoits, Love, Hershberger & McLean, specializing in employment law and related litigation. They can be reached at (650) 327-4200  |  Phone (650) 325-5572  |  Fax jsnyder@thoits.com emcdermit@thoits.com Employment Law Group: Jeffrey A. Snyder Erin L. McDermit Anne E. Senti-Willis Stephen C. Gerrish		U.S. Department of Labor Expands Family Leave Late last month, the Department of Labor (“DOL”) issued an administrative opinion that greatly expanded family leave rights for certain people with parenting responsibilities. The DOL’s interpretation makes it possible for more employees to take up to 12 weeks of unpaid leave to care for a child with a serious health condition, or for the birth, adoption, foster care, or bonding with a new child. Under the Family and Medical Leave Act (“FMLA”), eligible employees are entitled to 12 weeks of job-protected leave. FMLA defines a son or daughter as the biological child, adopted child, foster child, step-child, legal ward, or child of a person standing in loco parentis. The administrative interpretation issued by the DOL states that Congress intended the definition in FMLA to reflect the reality that many children do not live in a traditional, nuclear family. The DOL asserts that many employees who need job-protected leave are increasingly not the biological parent of the child being cared for. The agency also explains that Congress wanted the definition of parent to be interpreted so that the person actually responsible for day-to-day care of the child is entitled to leave, even if there is no biological or legal relationship. The DOL was able to expand the definition in FMLA by focusing on the in loco parentis status of an adult providing care to a child. A person stands in loco parentis by assuming parental obligations without going through a formal legal adoption. Whether or not a person is in loco parentis depends on the facts of the situation, including the age of the child, the degree of the child’s dependency on the adult, the amount of support provided to the child, if any, and the extent to which parental duties are performed. Interestingly, FMLA defines a person acting in loco parentis as someone who has day-to-day responsibilities and provides financial support to the child. But the DOL’s administrative interpretation takes a different approach, and states that it is not necessary to show the person has assumed day-to-day responsibilities and provided financial support. Instead, an employee who claims the requisite parental status can do so by showing that they perform day-to-day responsibilities, even if they provide no financial support. The employee is only required to submit a simple written statement asserting that the relationship exists. The DOL includes examples of the types of in loco parentis relationships that are covered under FMLA. A same-sex partner is now explicitly entitled to job-protected leave to care for a child, as are grandparents or an aunt or uncle who assume child-rearing responsibilities. The relationship may eventually carry a formal legal status, but even without that formality, the DOL has ensured that the care-giving adult will be entitled to leave just as a biological parent would be. The DOL’s interpretation has been hailed as a major milestone for same-sex partners and gay parents. Note that under FMLA, an eligible employee may take leave to care for a sick spouse. However, the DOL did not expand FMLA to allow same-sex partners to take leave for an ill spouse or partner. This is presumably because FMLA defines a “spouse” as a husband or wife and the Defense of Marriage Act does not leave room for a more flexible interpretation. Employers must carefully analyze any employee’s leave request to determine if the employee is eligible for leave, and, if eligible, what must be provided. It’s also important to keep in mind that California has its own leave laws that may or may not interact or run concurrently with federal leave laws, and it is the employer’s responsibility to ensure the leave laws are being applied properly. First Wednesday Distribution List If you are not receiving this newsletter directly, lease send me your e-mail address and I will add you to the First Wednesday Distribution List. If you would like this newsletter redirected to others within or outside your organization, please send me their e-mail addresses. First Wednesday is publication of general applicability and not specific to any set of facts. Thus, it should not be relied upon for any specific case or matter without further discussion. No attorney-client relationship is formed as a result of your reading or replying to this newsletter, which is not intended to provide legal advice on any specific matter, but rather to provide insight into current developments and issues. Internal Revenue Service Circular 230 Disclosure. Please note that any discussion of or advice regarding United States tax matters contained herein (including any attachments hereto) does not meet the requirements necessary to be a “covered opinion” as defined in Internal Revenue Service Circular 230, and therefore, is not intended or written to be relied upon or used and can not be relied upon or used for the purpose of avoiding federal tax penalties that may be imposed or for the purpose of promoting, marketing, or recommending any tax-related matters or advice to another party. JEFFREY A. SNYDER ERIN L. McDERMIT Thoits,Love,Hershberger & McLean 285 Hamilton Avenue, Suite 300 Palo Alto, CA 94301 (650) 327-4200  |  Phone (650) 325-5572  |  Fax E-mail: jsnyder@thoits.com             emcdermit@thoits.com
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