The Journal of The DuPage County Bar Association

Back Issues > Vol. 24 (2011-12)

The FMLA and the Department of Labor’s New Definition of “Family”: Reflecting Social Realities in Employment Rights
By Elizabeth George

The Family and Medical Leave Act (FMLA) is a statute granting affirmative rights to employees who qualify.[1] The purpose of the FMLA is to allow employees to balance the demands of their workplace with the needs of their families.[2] It allows employees of qualifying employers to take up to twelve weeks of unpaid leave, annually for qualifying medical and family reasons.[3] The FMLA grants this time for both anticipated leave and emergency leave, with different notice requirements for each.[4] This leave can also be taken intermittently, over the course of the year, for medical appointments and other covered medical reasons.[5]

The Department of Labor has issued an administrative interpretation that provided a broad definition of "son and daughter." In addition, a bill has been introduced in Congress that would allow for FMLA leave to care for, among others, a same-sex spouse or domestic partner.[6] This article will first review the FMLA and then will look at the new administrative changes as well as pending legislation that is aimed to broaden the protection provided under FMLA. 

Background. Among these reasons are those involving birth and adoption of children and caring for a seriously ill spouse or family member.[7] Under the FMLA “[t]he term ‘parent’ means the biological parent of an employee or an individual who stood in loco parentis to an employee when the employee was a son or daughter.”[8] However, only thirty-one percent of people take leave under the FMLA to care for an ill family member.[9]

Further, while the individual is on leave they are entitled to stay on their group insurance plan at work.[10] The individual taking leave must have paid the premiums and continue to pay while they are on leave.[11] The individual also does not lose any accrued seniority they attained prior to taking leave.[12] Upon returning to work, the employee is required to be returned to the same or an equivalent position.[13] An “equivalent position [is one] with equivalent benefits, pay, and other terms and conditions of employment.”[14] Essentially, while on leave the employee’s status freezes, and when they return they resume employment as if no leave had occurred.

There are two types of claims under the FMLA: interference and retaliation.[15] For an interference claim, the plaintiff must prove they were a qualified employee, they were employed by a qualified employer, they were entitled to leave, they gave notice of their intention to take leave, and their employer denied them the benefits they were entitled to under the FMLA.[16]  This differs from a retaliation claim in which the plaintiff must prove that they exercised their rights under the FMLA, they were qualified for their position, they suffered an adverse employment action, and that the adverse employment action occurred under circumstances that give rise to an inference of retaliatory intent.[17]

Essentially, there are two differences between the claims. The first is timing; a claim for interference is brought prior to the employee taking leave, whereas a claim for retaliation is brought after the employee has taken the leave they’re entitled to.[18] The second difference is intent. Where a claim for interference does not require any element of intent be proven, a claim for retaliation requires an intention on the part of the employer.[19]

A defense to one of these claims is that the employee was a key employee.[20] A key employee is an employee that is in the highest ten percent of pay at their facility and at any facility, owned by the employer, within seventy-five miles.[21] If the employer finds the individual is a key employee the employer may decline to return the individual to their previously held position.[22] However, the employer must determine that such denial is necessary to prevent grievous economic injury to the employer.[23] The employer must also give the individual notice of their status as a key employee prior to the individual taking leave.[24] Another defense to claims under the FMLA is that the employee would have been fired whether or not they had taken leave.[25] For example, if an entire department has been outsourced and the employee was working in this department prior to leave, the employee is not entitled to a claim for retaliation because he/she would have been fired regardless.[26]

Department of Labors Expanded Definition. Recently, the Department of Labor as well as Congress sought to expand the FMLA to include same-sex partners as well as blended families who have traditionally been excluded from coverage under the FMLA.[27] While there has been little, if any, litigation surrounding this new expansion, academics believe the first litigation about this expansion will be in response to same-sex couples.[28] The question now arises, what will this mean for employers and the employees who specialize in the FMLA in the Human Resources (HR) Department?[29]

The Department of Labor believes it will mean employers will have to be more liberal and expansive when deciding whether the requestor has the necessary quasi parental relationship to grant leave under the FMLA.[30] Specifically, the employer will have to be more expansive in deeming that someone is acting in loco parentis.[31] The example given by a recent press release uses a couple who has recently divorced and both parties remarried.[32] Under this new formulation of the term “family” the child of the original marriage now has four parents.[33] This means that children can now, hypothetically, have an unlimited amount of people acting in loco parentis for FMLA purposes.[34]

Most recently, Senator Durbin introduced a Bill to the Senate that would allow for FMLA leave to care for, among others, a same-sex spouse or domestic partner.[35] The Bill also allows for leave to take care of grandparents, grandchildren, parents-in-law, siblings, and sons or daughters in-law.[36] Arguably, this has the same or a substantially similar effect as the Department of Labor’s expanding the definition of family. The Bill codifies specific expansions of the phrase in loco parentis into the actual text of the FMLA.[37]

Analysis. These new movements toward the expansion of FLMA rights and protections to people who were traditionally prevented from exercising them is an example of the law following in the footsteps of social acceptance. It is not out of the ordinary for most people to see a blended family in their own personal lives, the personal lives of a close friend or family member, or in social media. It is no longer considered taboo for a same-sex couple to adopt a child or have a child of their own. These social norms give rise to greater feelings of injustice when these people are denied rights granted to others who are similarly situated.

A member of a blended family has to go through similar struggles in raising a child and when that child is sick, who is to say they should not be granted the leave to care for him or her? The purpose of the FMLA is to balance the responsibilities of work with the realities of a family.[38] These families, though not what was traditionally considered a family, have these same obligations to their employment and families. They bear financial and emotional burdens that come with children and partners. For a long time, these burdens were not recognized as legitimate[39], but with this expansion of the definition of family the FMLA moves into the realities of socialization in the modern era.

This means that HR Departments will have to tread lightly when determining whether the individual qualifies for leave under the FMLA. Arguably, under this new definition, anyone who is leaving to care for a sick child is acting in loco parentis at that time, whether or not they traditionally care for that child. Employee’s leave to care for a child or other sick family member accounts for nearly half of all requests for FMLA leave.[40] Therefore, this new definition affects a high volume of requests for leave in an HR context.

While there is still a lack of litigation involving this new definition of family, the impending litigation seems certain given the downturned economy and the broad expansion of coverage. The Department of Labor seems intent on giving broad inclusion into the FMLA,[41] but it has yet to be seen as to whether the courts will respect this intention. Hopefully, the broad application of in loco parentis will continue to be expanded so the benefits that were intended for people balancing both work and families will be given to anyone with a “family”.

[1] 29 U.S.C. § 2612.

[2] 29 U.S.C. § 2601.

[3] Id.

[4] Strickland v. Water Works and Sewer Bd. of Birmingham, 239 F.3d 1199 (11th Cir. 2001); Bailey v. Miltope Corp., 513 F.Supp. 2d 1232 (M.D. A.L. 2007).

[5] 29 U.S.C. § 2612.

[6] S. 1283, 112th Cong. (2011).

[7] Id.

[8] 29 U.S.C. § 2611

[9] FMLA: Facts and Statistics, A.A.U.W (last visited Nov. 7, 2011), http://www.aauw.org/act/laf/library/fmlastatistics.cfm.

[10] 29 U.S.C. § 2614.

[11] Id.

[12] 29 U.S.C. § 2614.

[13] Id.

[14] Hoge v. Honda of America Mfg., Inc., 384 F.3d 238, 245 (quoting 29 C.F.R. § 825.214).

[15] Reilly v. Revlon, Inc., 620 F.Supp. 2d 524 (S.D. N.Y. 2009).

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Panza v. Grappone Co., 2000 WL 1700143 (D. N.H. Oct. 20, 2000).

[21] 29 U.S.C. § 2614.

[22] Id.

[23] Panza v. Grappone Co., 2000 WL 1700143 (D. N.H. Oct. 20, 2000).

[24] Id.

[25] O’Connor v. PCA Family Health Plan, Inc., 200 F.3d 1349 (11th Cir. 2009).

[26] Id.

[27] Dolline Hatchett, US Department of Labor Clarifies FMLA Definition of ‘Son and Daughter’: Interpretation is a Win for All Families No Matter What They Look Like, United States Department of Labor (June 22, 2010), http://www.dol.gov/opa/media/press/WHD/WHD20100877.htm; S. 1283, 112th Cong. (2011); See Alana M. Bell & Tamar Miller, When Harry Met Larry and Larry Got Sick: Why Same-Sex Families Should be Entitled to Benefits Under the Family and Medical Leave Act, 22 Hofstra Lab. & Emp. L.J. 276, (2004).

[28] Dolline Hatchett, US Department of Labor Clarifies FMLA Definition of ‘Son and Daughter’: Interpretation is a Win for All Families No Matter What They Look Like, United States Department of Labor (June 22, 2010), http://www.dol.gov/opa/media/press/WHD/WHD20100877.htm.

[29] See Id.

[30] Id.

[31] Id.

[32] Id.

[33] Id.

[34] Dolline Hatchett, US Department of Labor Clarifies FMLA Definition of ‘Son and Daughter’: Interpretation is a Win for All Families No Matter What They Look Like, United States Department of Labor (June 22, 2010), http://www.dol.gov/opa/media/press/WHD/WHD20100877.htm.

[35] S. 1283, 112th Cong. (2011).

[36] Id.

[37] See Id.

[38] See 29 U.S.C. § 2601.

[39] See Alana M. Bell & Tamar Miller, When Harry Met Larry and Larry Got Sick: Why Same-Sex Families Should be Entitled to Benefits Under the Family and Medical Leave Act, 22 Hofstra Lab. & Emp. L.J. 276, (2004).

[40] FMLA: Facts and Statistics, A.A.U.W (last visited Nov. 7, 2011), http://www.aauw.org/act/laf/library/fmlastatistics.cfm (stating that thirty-one percent of people take leave to care for a seriously ill family member and twenty-six percent take the leave to care for a new child).

[41] Dolline Hatchett, US Department of Labor Clarifies FMLA Definition of ‘Son and Daughter’: Interpretation is a Win for All Families No Matter What They Look Like, United States Department of Labor (June 22, 2010), http://www.dol.gov/opa/media/press/WHD/WHD20100877.htm.

Elizabeth George is a second year law student at Northern Illinois University College of Law where she is a member of the Law Review. She is also a law clerk at The Cosentino Law Firm, LLC in Dekalb. Elizabeth graduated from Benedictine University with a Bachelor’s Degree in Business and Economics.

 
 
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