Well, we stand corrected. While we said in our summary of the DOL's new Administrator Interpretation (.pdf) on the issue of FMLA leave for those standing in loco parentis for a child that the new interpretation "arguably does not change existing law," Secretary of Labor Hilda Solis evidently thinks that it does. Writing in the Huffington Post, Secretary Solis had this to say about the new interpretation:
A couple weeks ago, as I was preparing a witness for his deposition (in a Title VII and FMLA case), it dawned on both of us that his deposition would take place mere hours after the deciding Game 6 of the Stanley Cup Playoffs. Upon this realization, his face grew a bit pale, and he began wondering out loud whether he would be in the best shape for a deposition the day after a Chicago Blackhawks victory. [Insert here: visions of a late night at the local pub.]
No worries -- both my client and the Blackhawks came out on top. However, the more I considered the above exchange, the more I wondered whether this scenario raises a common issue for employers as they administer FMLA leave -- Do major sporting events, such as the Stanley Cup and ongoing World Cup, invite widespread abuse of FMLA leave?
On June 22, 2010, the U.S. Department of Labor issued an Administrator Interpretation (.pdf) to clarify the definition of a “son or daughter” under the FMLA to ensure that an employee who seeks time off work to care for a child receives FMLA leave regardless of the employee’s legal or biological relationship with the child. Although the DOL interpretation arguably does not change existing law, many consider it a huge win for nontraditional families, including families in the lesbian-gay-bisexual-transgender (LGBT) community who, the DOL asserts, “often in the past have been denied leave to care for their loved ones.”
The New York Times is reporting today that the U.S. Department of Labor Wage and Hour Division will issue a "ruling" tomorrow, providing that an employee in a same-sex relationship may use FMLA leave to care for the child of his or her partner, even if the employee has not legally adopted the child. It is not clear whether this new ruling will actually amount to an expansion of FMLA rights, or will merely clarify the existing rule that an employee may take FMLA to care for a child for whom the employee acts as a parent ("in loco parentis").
We will of course provide details of the new ruling once it becomes available.
Gay and lesbian employees in the Illinois Treasurer's office who are in a committed relationship will enjoy the same FMLA benefits as married employees under an executive order signed by state treasurer (and U.S. Senate candidate) Alexi Giannoulias Sunday. As a result, these employees will have the same family and medical leave benefits to care for their domestic partner when they suffer from a serious health condition and will be allowed to take time off to have or adopt children.
In a rare move, a federal district court in the District of Columbia overturned a jury's verdict in favor of an employee who claimed that a "reallignment" of her sales territory three years earlier, while she was out on FMLA leave, ultimately led to the termination of her employment. This case illustrates a key principal under the FMLA: an employee's right to "reinstatement" following FMLA leave is not a guarantee of permanent employment. Breeden v. Novartis Pharmaceuticals Corporation.
Have you been concerned that the US Department of Labor in an Obama Administration might reverse many of the "employer-friendly" FMLA regulations (pdf) that took effect in January 2009? According to the DOL, however, major changes to the regulations is unlikely to happen any time soon.
Last fall, Congress passed and the President signed several amendments to the Family and Medical Leave Act, including an expansion of military leave (2010 Defense Department Authorization Bill) and a relaxation of the hours requirement for airline employees (Airline Flight Crew Technical Corrections Act).
Congress' willingness to amend portions of the FMLA in 2009 may be a sign of things to come in 2010. The above FMLA legislation constitutes just a fraction of the FMLA bills under consideration in Congress. Click on the link below for a summary of FMLA legislation currently pending in Congress as well as its status.
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