USDOL Expands Applicability of FMLA Leave for Parents

Posted on July 16, 2010 by Nicole Gerritsen

On June 22, 2010, the United States Department of Labor (“USDOL”) Wage and Hour Division issued Administrator’s Interpretation No. 2010-3 (the “Interpretation”), which clarifies the definition of “son or daughter” under the Family and Medical Leave Act (“FMLA”), as it applies to employees standing “in loco parentis,” or “in the place of a parent,” to a child. A copy of the Interpretation can be found here.

The FMLA entitles an eligible employee to take up to twelve (12) weeks of job-protected leave upon the birth of a son or daughter, the placement of a son or daughter with the employee for adoption or foster care, or to care for a son or daughter with a serious health condition. See 29 U.S.C. § 2612(a)(1)(A)-(C); 29 C.F.R. § 825.200. The FMLA defines son or daughter as including a child of a person standing in loco parentis who is either under 18 years old or older than 18, but incapable of self-care due to a disability. In this Interpretation, the USDOL noted that the FMLA regulations define “in loco parentis” as including those with day-to-day responsibilities to care for and financially support a child. See C.F.R. § 825.122(c)(3). However, the Administrator announced in its interpretation of the regulation that either day-to-day care or financial support may establish an in loco parentis relationship, so long as the individual intends to assume the responsibilities of a parent with regard to a child; it is not necessary for an employee to establish both in order to be found to stand in loco parentis. The Administrator further acknowledged that a determination of in loco parentis status to a child is to be made on a case-by-case basis.

Employers should consult counsel with any questions regarding the proper application of FMLA guidelines and/or regulations in order to ensure appropriate action is taken with respect to each unique familial circumstance.

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Employers Must Be Aware of Amendments to Federal Family and Medical Leave Act

Posted on March 6, 2009 by Randi W. Kochman

Effective January 16, 2009, the United States Department of Labor promulgated new regulations applicable to the Family and Medical Leave Act (“FMLA”). While the following contains only highlights of the recent rule changes, employers are well advised to make themselves aware of all modifications to the FMLA. 

Perhaps the most significant changes to the FMLA relate to notice obligations. As the notification requirements have changed, employers must be aware that they must provide four different types of notice to employees. These notices include (i) general notice, (ii) eligibility notice, (iii) rights and responsibilities notice, and (iv) designation notice. If the employer’s work force is not literate in English, the notices must be translated into a language in which the work force is literate.

The general notice must provide a general statement of the FMLA’s provisions and must be placed in a prominent location, It should also be distributed in the employer’s handbook. The eligibility notice must notify the employee whether or not he or she is eligible for the FMLA within five (5) business days of the employee’s request for FMLA leave or from when the employer acquires knowledge that the employee’s leave may be covered under the FMLA. The notice should indicate whether the employee has been approved for FMLA and, if not, why the leave request has been denied. The Rights and Responsibilities Notice must advise the employee that the employer may designate and count the leave toward the employee’s FMLA entitlement. The notice is also required to provide additional information including whether the employee must substitute paid leave, and whether a certification will be required during the leave. Finally, the designation notice must be written and inform the employee whether the employer believes the employee is FMLA-qualifying.

Another major area in which the FMLA has been amended is with regard to military-related leave. Specifically, the National Defense Authorization Act extends FMLA leave to certain situations where employees need leave to care for an injured service member or due to a “qualified exigency in support of a contingency operation.” Eligible employees, including a “spouse, son, daughter, parent or next of kin of a covered service member” are eligible for leave of up to 26 work weeks in a single twelve month period to care for a injured service member. Leave can also be taken for a “qualifying exigency,” which includes situations in which an employee must address military-related issues such as short notice deployment, military events and related activities, urgent childcare and school activities, financial and legal tasks, counseling for the employee or a minor child, etc. 

 


 

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