New FMLA Entitlement for Aunts, Uncles, Grandparents, Same-Sex Parents

A new U.S. Department of Labor regulation underscores the fact that gay parents and others in nontraditional families have the right to take up to 12 weeks of FMLA to care for a child with a serious health problem, or to bond with a child (under 18) who is new to the home.

This regulation is no surprise. Even before the 2009 Final Rule, any employee who was acting in loco parentis – in place of a parent – was entitled to take FMLA leave when the child had a serious health problem. An employer could require “proof” of the employee’s relationship to the child, but adoption papers or a court order were not required. In fact, even a hand-written statement from the employee that he or she was responsible for the child and was acting in the place of a parent, was sufficient under the federal Family and Medical Leave Act.

The clarification issued by assistant administrator Nancy Leppink of the Wage and Hour Division simply underscores that regulation. Leppink points out that the new regulation would permit a stepparent to take time off to bond with a new child or to care for a child with a serious health condition. The new regulation specifically extends FMLA coverage to both partners in a gay relationship who coparent a child, whether the partners are married, united in a civil union or single. This action is seen as a perk specifically intended for the lesbian, gay, bisexual and transgender or LGBT community.

The new regulation also expressly states that a child can have more than two “parents” under the FMLA definition – in fact, a dozen or more people could be acting in parental roles for the child, and could be entitled to unpaid time off. A child’s father, mother, stepmother, stepfather, three uncles, two aunts, and four grandparents could each take up to 12 weeks of unpaid FMLA under the new regulation, as long as each person was acting as  a parent to the child.

The major beneficiaries of FMLA this new regulation may well be grandparents. In the past, many employers have been reluctant to grant FMLA to a grandparent if the child had two parents on the scene. For example, if a 16-year-old gave birth, many employers were reluctant to grant leave to the maternal grandparent to care for the child. Under this regulation, the teen mother’s parent would be acting as a parent to the new baby, even though the teenage parents were still on the scene and financially responsible for the child.

The new FMLA regulation specifically states that anyone acting in the role of caring for a child is entitled to leave, regardless of the legal or biological relationship – or lack of relationship. The leave also applies to military family members such as uncles, aunts and grandparents.