The Federal Sector FMLA Blog

Did I Say "And"? I Meant "Or": DOL Reinterprets In Loco Parentis Requirements

On June 22, 2010, the US Department of Labor reinterpreted the existing requirements for an in loco parentis relationship for FMLA leave due to the birth, adoption, foster care placement or serious health condition of a son or daughter.  The FMLA permits an eligible employee-parent to take FMLA leave to bond with a newborn or newly adopted/foster care placed son/daughter, or to care for a son or daughter with a serious health condition.  Parent includes in loco parentis relationships- meaning situations where there is not a biological or legal relationship between parent and child, but the person assumes the role of the parent toward the child.  Under the existing regulation, 29 CFR 825.122(c)(3), an in locoparentis relationship has two requirements: (1) day-to-day care of the child; and (2) financial support.  In the memorandum, the DOL announced that the regulations only requires that the employee who intends to assume the responsibilities of a parent to either provide day-to-day care for the child OR financial support, but not both.  The DOL's "interpretation" is at direct odds with the plain reading of the regulation.

Comment:  The DOL Memorandum received a lot of Press because of it confirmed that same-sex partners who satisfy the definition could be an in loco parentisparent for purposes of FMLA leave.  While that has always been a distinct possibility, it is noteworthy that the DOL has put in it writing. The substantive change is that the DOL has reduced the burden for establishing an in loco parentisparental relationship with a child from two requirements to one by interpreting "and" in the existing regulation to mean "or."  My guess is that the DOL will formalize the change when it gets around to issuing regulations to implement the 2010 National Defense Authorization Act changes to military family leave. 

The DOL Memorandum is available at http://www.dol.gov/opa/media/press/WHD/WHD20100877.htm

While the DOL memorandum does not technically control the OPM FMLA regulations, federal agencies, unions, and employees would be well-advised to  apply the changes anyway. The OPM FMLA regulations were derived from the DOL FMLA regulations. With respect to in loco parentis, the OPM definition is identical to the DOL definition.

FMLA Leave for Same -Sex Domestic Partnerships: The New OPM Leave Regulations as Stalking Horse

During the last presidential campaign, candidate Obama favored expansion of the FMLA to allow an employee to take job-protected leave to care for a same sex domestic partner suffering with a serious health condition.  Pending legislation (H.R. 3047) seeks to make such a change law. Currently, the Defense of Marriage Act excludes same-sex marriages, including civil unions or domestic partnerships, from FMLA coverage (by defining a "spouse" as member of the opposite sex).

Given the President's expressed support for changes to the FMLA, and the Democrats control of Congress (at least until mid-term elections this November), it is possible that legislation to modify the FMLA, including the addition of domestic partnerships, might be seriously considered.  With regard to expansion of the FMLA to cover same-sex partnerships, what that legislation might look like may be gleaned from recent regulatory changes made by the US Office of Personnel Management (OPM) allowing some federal employees to take leave (but not FMLA leave) for a domestic partner.  See 75 FR 33491-33497 (June 14, 2010).  The regulations take effect July 14, 2010. 

On June 17, 2009, President Obama directed OPM to clarify that existing employment benefits enjoyed by federal workers extended to same-sex domestic partners.  OPM did so by altering the definition of a "family member" to include a domestic partner in a committed relationship.  The benefits extended included the federal employees ability to use sick leave, funeral leave, voluntary leave transfer, voluntary leave bank, and emergency leave transfer in relation to . 

Domestic partner means an adult in a committed relationship with another adult, including both same-sex and opposite-sex relationships.  Opposite-sex domestic partnerships would cover common law marriages in States that do not recognize common law marriages.  In States that already recognize common law marriages, the inclusion of opposite-sex domestic partnerships suggests coverage for committed relationships that fall short of a common law marriage. 

Committed relationship means one in which the employee, and the domestic partner of the employee, are each other's sole domestic partner (and are not married to or domestic partners with anyone else); and share responsibility for a significant measure of each other's common welfare and financial obligations.  This includes, but is not limited to same-ex and opposite-sex relationships granted legal recognition by a State or the District of Columbia as a marriage or analogous relationship (e.g., civil union). 

OPM rejected suggestions that it issue regulations governing what documentation an agency may request to substantiate a covered domestic partnership.  It noted that agency's typically do not ask for documentation to substantiate leave to prove an employee's relationship with a parent, brother, sister, or spouse.  OPM implied that, absent suspicion of leave abuse, it should follow that practice where an employee claims the need for leave for a domestic partner.  Where leave abuse is suspected, OPM indicated that agencies have the existing authority to request documentation to substantiate a request for leave, and that they should follow the same procedures for all employees where they suspect leave abuse.  

Comment: OPM's definition of a domestic partner in a committed relationship is, in my opinion, needlessly vague and over broad.  Specifically, it is unclear what it means to "share responsibility for a significant measure of each other's common welfare and financial obligations."   The terms are undefined.  Other than rejecting application of the definition to a roommate, OPM fails to give examples to animate the meaning of this key phrase.  Certainly, the phrase applies to common law marriages, civil unions, or domestic partnerships in States that recognize such relationships.  It is unclear, at least to me, why OPM would not adopt a definition that ties the relationship to the attributes of a common law marriage, domestic partnership, or civil union, as those terms have been recognized by some States for years.  Absent such a tether, OPM invites a flood of litigation to flesh out the contours of a committed relationship, particularly in the area above roommate and below recognized common law marriage, civil union, or domestic partnership.  The point of a regulation is to give employers and employees useful guidance so that they know what to expect and can conform their conduct to meet legal obligations.  This regulation, in my opinion, falls short of meeting that standard. 

The above regulatory changes do not apply to the FMLA - yet.  That will require modification of the Defense of Marriage Act (DOMA). If, however, this is any example of the standard to be applied in the event the DOMA and FMLA are modified to include domestic partnerships, employers and employees should be prepared for the tsunami of litigation that will ensue over the level of commitment to the relationship.  The good news is that such a change should make the attorneys very happy. 

The new OPM leave regulations do not apply to the Postal Service.      

DOL To Propose Changes to FMLA Regulations

In the Unified Agenda for April 26, 2010, the DOL announced that it will be proposing regulatory changes to implement the National Defense Authorization Act of 2010, and the Airline Flight Crew Technical Corrections Act, as well as other unspecified revisions, once it completes its review of the subject.  The DOL did not provide a date when it it expected to propose the regulations.  It did, however, indicate that it would publish the revisions for notice-and-comment rulemaking.  The notice may be found at 75 FR 21832 (April 26, 2010). 

Comment:  In addition to regulations implementing the referenced statutory revisions to the FMLA, it is widely expected that the DOL under the current administration will propose revisions to some of the regulatory revisions to the FMLA made during the twilight of the Bush Administration.  In the prior Unified Agenda, the DOL anticipated that it would have the new rules by this November - just in time for mid-term elections.  I find it interesting that the current Unified Agenda omits an expected publication date.  My guess -  and that is all it is- is that we will see new proposed DOL FMLA regulations by this November as fodder for the base. 

OPM has not proposed similar revisions to Title II of the FMLA.  By statute, OPM is directed to follow the lead of the DOL.  As such, I do not expect OPM to take any action to alter the existing FMLA regulations until sometime after the DOL has issued its revisions. 

Incomplete Certification is not a "Negative Certification"

In Verkade v. US Postal Service, No. 09-1268 (6th Cir. May 27, 2010), the Court rejected the determination of the trial court that the USPS was entitled to rely on prior incomplete medical certifications as negative certifications to deny Verkade's request for FMLA leave.  The Court found that an incomplete medical certification is not the same thing as a negative certification. The difference is important because an employer may rely on a negative certification to deny an employee's request for FMLA leave.  A "negative certification" is one that is complete, but that "facially demonstrates that the absence was not FMLA-qualifying."  Stoops v. One Call Commc'ns, Inc., 141 F.3d 309, 311 (6th Cir. 2006).  For example, a certification that indicated that the employee would not need to be absent from work is a "negative certification."  The certifications in Verkade were not invalid; rather they were incomplete and lacked sufficient information to make a determination whether the condition was FMLA-qualifying.   The Court went on to affirm the award of summary judgment in favor of the Postal Service on other grounds.

A second noteworthy aspect of the decision involves the Court's determination that five days afforded Verkade a reasonable opportunity to cure the cited deficiencies in one of the medical certifications he submitted.  The Court found five days reasonable in light of the extensive "history of Verkade's interaction" with the Postal Service FMLA Office, including multiple prior notices detailing the deficiencies with the prior, substantively identical certifications he submitted. 

Comment:  The decision teaches: (1) employers may not rely on incomplete certifications as "negative certifications" to deny FMLA leave; and (2)the calculation of a reasonable period to cure medical certification deficiencies may be influenced (e.g., lengthened or shortened) by the employee's prior awareness of what is required to submit a complete, valid medical certification to support FMLA leave.  

The decision is based on version of the Title I FMLA regulations that was superseded by revised regulations that went into effect on January 16, 2009.  Under the revised regulations, the employer must give an employee at least seven calendar days to cure identified deficiencies.  If seven days is not practicable despite the employee's good faith efforts, the employer must provide an unspecified amount of additional time.  If the employee fails to cure the deficiencies within the seven days (or longer, if impracticable), the employer may deny the taking of FMLA leave.  See 29 CFR 825.305(c).  With respect to the calculation of a reasonable period to cure certification deficiencies, the Verkade decision should remain viable where it is not practicable for an employee to cure deficiencies within seven calendar days.  

OPM's regulations governing Title II of the FMLA do not include provisions allowing an employee to "cure" certification deficiencies.  The decision, therefore, is of limited utility where Title II of the FMLA is involved.