Stay on top of changes concerning leave to care for family members
By Barbara Haga
FMLA ADVISOR: The past few weeks have been full of news about changes in the interpretation of definitions of family members in connection with both sick leave and FMLA. This month's column explains which definitions apply under what circumstances.
Sick leave regulations
The
final regulations issued by the Office of Personnel Management on June 14 are the answer to the proposed regulations from September 2009. These changes apply to sick leave and the various leave transfer programs. They also apply to funeral leave when an employee is granted leave in connection with a funeral or memorial service for an immediate relative who died as a result of wounds, disease, or injury incurred while serving as a member of the armed forces in a combat zone. See
5 CFR Part 630 Subpart H . OPM noted in the Supplementary Information on the first page of the document at 75 FR 33491 that these regulations do not apply to the FMLA.
The final regulations go into effect on the first day of the first pay period after July 14, 2010; so for some, the regulations could take effect this coming Sunday, July 18th.
Coverage for additional family members applies under two provisions of the sick leave regulations. These appear at
5 CFR 630.401 (3) and (4), allowing a federal employee to use sick leave to provide care for a family member or to make arrangements necessitated by the death of a family member or to attend the funeral of a family member. Nothing in the revised regulations makes any changes to the limitations on the number of hours that may be used for these purposes.
The newly included family members include stepparents and stepchildren, grandparents and grandchildren, and both same-sex and opposite-sex domestic partners in committed relationships. Previously these family members might have been in coverage of the term "family member" if the relationship was such that it was the equivalent of one of the stated family member definitions -- for example, a child being raised by a grandparent although not formally adopted. The new definitions make it clear that the administration of sick leave programs must be inclusive of non-traditional family relationships rather than exclusive, so agencies that might have been more conservative now have specific guidance to include more family members.
FMLA and in loco parentis
Currently, the FMLA grants coverage only for a spouse, parent, son or daughter, except military-related FMLA, which includes next of kin. There have been no amendments to the coverage portions of either Title I or Title II of FMLA and no regulations have been issued by either the Department of Labor or OPM. However, there have been two "interpretations" that you should be aware of.
DOL issued "
Administrator's Interpretation No. 2010-3 " on June 22nd. This document clarified the definition of son or daughter to cover those acting as a parent of a child. Both the DOL and OPM FMLA regulations specifically cover biological children and adopted children, as well as a foster child, stepchild, legal ward, or a child of a person standing
in loco parentis.
The definition of in loco parentis under both the DOL and OPM regulations includes those with day-to-day responsibilities to care for and financially support a child. In the interpretation, DOL notes that the administrator has determined "the regulations do not require an employee who intends to assume the responsibilities of a parent to establish that he or she provides both day-to-day care and financial support in order to be found to stand in loco parentis to a child." While the regulation states that both conditions are required, DOL's written interpretation now requires just one.
There are a number of examples given in the interpretation of an in loco parentis relationship:
· A grandparent takes in a grandchild and assumes ongoing responsibility for raising the child because the parents are incapable of providing care.
· An aunt assumes responsibility for raising a child after the death of the child's parents.
· An employee shares equally in the raising of an adopted child with a same-sex partner.
· An employee who provides day-to-day care for his unmarried partner's child but does not financially support the child.
DOL notes in the interpretation that a simple statement asserting that the requisite family relationship exists is all that is needed in situations where there is no legal or biological relationship.
OPM has not issued an interpretation on this point yet, but it is likely its review will yield the same result.
FMLA and same-sex spouses
The definition of spouse in the FMLA is tied to the Defense of Marriage Act. DOMA defines marriage as a husband or wife pursuant to a legal union between one man and one woman. The term also includes common law marriage where it is recognized by the state in question.
On July 8, a District Court judge in Massachusetts found that same-sex partners who are legally married should be granted federal benefits,
Gill, et al. v. Office of Personnel Management, 110 LRP 39892 (D. Mass. 07/08/10)
. Some states, including Massachusetts, have made same-sex marriage legal, and the employee named in the case is legally married to another woman. The employee works for the U.S. Postal Service and had been denied health benefits coverage for her spouse based on DOMA.
If this ruling becomes the official interpretation, then FMLA benefits would also be available to same-sex spouses.
The Obama administration has indicated that it favors legislation providing benefits such as health insurance coverage to same-sex partners, which officials believe current law prevents this. This ruling runs counter to that view. The Justice Department may appeal the decision, so stand by for further updates.
You can find all of our previous FMLA Advisor columns in the FMLA Roundup .
July 14, 2010