DOL Regulations Fold Gay Couples into FMLA Parenting Coverage

Moving to accomplish through regulations what it can no longer get through Congress after the loss of its Senate super-majority, the Obama Administration has ruled through a Department of Labor (DOL) administrative interpretation (AI) that gay couples are entitled to the same parenting benefits as others under the Family and Medical Leave Act of 1993.

The interpretation extends FMLA rights to those who stand in loco parentis–“in the situation of a lawful parent by assuming the obligations incident to the parental relation.”

The administrator interpretation issued by Nancy J. Leppink, deputy administrator of the DOL’s WHD (Wage and Hour Division), clarifies that an individual falling into this category is not required to establish that he or she provides both day-to-day care and financial support to the child, thus covering those who fall outside of the “traditional” parent category.

Regulations and administrative orders, of course, can be reversed by future administrations, just as President Obama himself did with his Executive Order 13496, which turned on its head the Bush-era Beck Poster. While Bush/Beck advised employees of their right not to join unions, EO 13496 and its new poster require federal contractors to notify employees of their right to join unions.

The FMLA allows workers unpaid time off to care for newborns or loved ones, and though the law has long recognized domestic partners, a provision for gay couples in a parental role has never been never explicitly added to the legislation.

DOL spokespersons said there is no plan to ask Congress to ratify the new regulations concerning gays.

For more details on FMLA compliance and the rights and obligations of both employers and employees, please refer to Personnel Concepts’ FMLA Regulatory Updates Compliance Kit. Get your copy today. 

NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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