DOL Widens FMLA Eligibility
August 4, 2010
While employers’ attention is swirling around the evolving regulations from recent health care reform legislation, the federal government also has been tinkering with an older labor law that could have significant impact on employers.
The Department of Labor (DOL) in June altered the definition of “son” and “daughter” as it applies to the Family and Medical Leave Act (FMLA), allowing some same-sex couples and domestic partners to take time off to care for their partners’ children.
The DOL’s decision also would allow other caregivers, such as aunts, uncles and grandparents, to take advantage of the 12 weeks of unpaid leave that FMLA permits.
Under the changes, “an employee who either bears day-to-day responsibility for care or financially supports the child stands in loco parentis,” meaning he or she can qualify for leave to take care of a child under FMLA, even if the employee is not a legal parent of the child, according to the law firm Gray Plant Mooty.
To verify eligibility, employers can require employees to produce “reasonable documentation” of the relationship under the rules, writes the law firm’s Bryan Seiler.
Myra Creighton of Fisher & Phillips LLP said the changes will spark a jump in FMLA requests, and “reasonable documentation” likely won’t be hard for employees to produce.
“[The] DOL clearly says that ‘[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,’” Creighton told Human Resource Executive Online.
Stephen Paskoff of ELI Inc., a compliance company in Atlanta, said most employers will be able to adjust to this change because they already have solid FMLA policies in place. The difficult part, Paskoff told the online HR magazine, will be educating managers and making sure they follow the rules.
“Some managers and employers are going to have conceptual or moral problems accepting the concept [that same-sex couples are eligible for FMLA leave], but somehow they have to understand it, whether they personally agree with it or not.”
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