Same-sex partners and others are eligible for FMLA leave

McAfee & Taft labor and employment attorney Kristen Simpsen was featured in The Oklahoman discussing the labor department’s new clarification on same sex partners and others eligible for Family Medical Leave Act (FMLA) leave.

Currently under FMLA, an employee is entitled to 12 weeks of job-protected leave when certain situations arise. These situations can range from a birth or adoption of a child to caring for a son or daughter with a serious health condition.

This clarification allows not just biological parents to take this job-protected leave but parents that are in loco parentis relationships as. Loco parentis means “in place of parent” and includes same-sex partners assuming these roles, Simpsen told The Oklahoman.

In terms of eligibility for same-sex partners, the labor department states that if the employee’s partner adopts a child or gives birth they are allowed FMLA leave. Same-sex partnerships are just one type of an in loco parentis relationship, there are many other ways an employee can be classified as being in one, Simpsen explained.

“Whether an in loco parentis relationship exists depends on a number of factors, including the child’s age, the degree to which the child depends on the employee seeking leave, the amount of support the employee provides the child and the extent to which the employee exercises the duties commonly associated with parenthood.”

Simpsen said there is no limit on how many people can be in loco parentis to a child. An employee is eligible for FMLA leave even if a child has a biological parent at home or even both their mother and father, if the employee assumes parental obligations for a child they are in this loco parentis relationship.