Did I say “and”? I meant “or” – Department of Labor’s Reinterpretation of In Loco Parentis requirements under FMLA

Did I say “and”? I meant “or” – Department of Labor’s Reinterpretation of In Loco Parentis requirements under FMLA
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/ Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

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 loco parentis 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.

Mr. Bosland Comments: 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 parentis parent 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 parentis parental 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 on the Internet at: http://www.feedblitz.com/t2.asp?/121772/2190912/0/http://www.dol.gov/opa/media/press/WHD/WHD20100877.htm

Drug dependency not a disability under New York’s Human Rights Law

Drug dependency not a disability under New York’s Human Rights Law
Matter of Michael Kirk v City of New York, 47 AD3d 406

Michael Kirk was terminated from his position with the New York City Fire Department after testing positive for cocaine in a random drug test.

The Appellate Division rejected Kirk’s contention that the Department’s random drug testing policy is unconstitutional and decided that the penalty of termination for substance abuse “does not shock the conscience,” citing Reinhard v City of New York, 34 AD3 376, leave to appeal denied, 8 NY3d 808.

The court pointed out that while alcohol dependency qualifies as a disability under the New York State Human Rights Law, drug abuse does not and Kirk was unable to prove that his drug abuse was causally related to his alcoholism.

The decision is posted on the Internet at:http://www.nycourts.gov/reporter/3dseries/2008/2008_00037.htm

Two-part test applied in resolving union’s improper practice charge

Two-part test applied in resolving union’s improper practice charge
Matter of Social Service Employees Union, Local 371, (Aubrey Norris) v New York City Bd. of Collective Bargaining, 47 AD3d 417

The Appellate Division upheld a determination by the New York City Board of Collective Bargaining that denied Local 371’s claim that the New York City Administration for Children’s Services [ACS] committed an improper practice petition when it denied a union official access to its headquarters to perform his duties as a union official.

Aubrey Norris, a Local 3761 officer, claimed that security officers employed by ACS “had interfered with access to ACS headquarters to perform his duties as a union official, in violation of the New York City Collective Bargaining Law (Administrative Code of City of NY § 12-306[a]).”

The Board decided that Norris failed to establish a violation under the applicable two-part test: [1] proof that the employer's agent responsible for the allegedly discriminatory act had knowledge of the employee's protected union activity, and [2] that such activity was a motivating factor for the employer's action.

The Board found that while it was undisputed these ACS employees knew of Norris's union activity, the evidence indicated their actions were motivated by personal animus toward Norris rather than toward him as a union representative, noting that other union representatives had no difficulty gaining access to the building for union business, and Norris was never actually prevented from entering the building.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2008/2008_00052.htm