For those seeking benefits, see this note from the North Carolina Employment Security Commission: “On July 22, 2010, the extension of the Federal Emergency Unemployment Compensation (EUC08) program was signed into law. The new law extends the filing deadline, but it does not provide for additional EUC08 tiers. The ESC is working with the Department of Labor to implement this change as quickly as possible. If you are currently filing for benefits please continue to do so. If you are not currently filing for benefits our agency will notify you on how to reinstate your claim.”

The FMLA entitles an eligible employee to take up to 12 workweeks of job-protected leave, in relevant part, “[b]ecause of the birth of a son or daughter of the employee and in order to care for such son or daughter,” “[b]ecause of the placement of a son or daughter with the employee for adoption or foster care,” and to care for a son or daughter with a serious health condition. See 29 U.S.C. § 2612(a)(1)(A)-(C); 29 C.F.R. § 825.200. The FMLA defines a “son or daughter” as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is— (A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability.” 29 U.S.C. § 2611(12).

Congress intended the definition of “son or daughter” to reflect “the reality that many children in the United States today do not live in traditional ‘nuclear’ families with their biological father and mother. Increasingly, those who find themselves in need of workplace accommodation of their child care responsibilities are not the biological parent of the children they care for, but their adoptive, step, or foster parents, their guardians, or sometimes simply their grandparents or other relatives or adults.”

In loco parentis is commonly understood to refer to “a person who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to legal adoption. It embodies the two ideas of assuming the parental status and discharging the parental duties.” . . . “The key in determining whether the relationship of in loco parentis is established is found in the intention of the person allegedly in loco parentis to assume the status of a parent toward the child. The intent to assume such parental status can be inferred from the acts of the parties.” Whether an employee stands in loco parentis to a child is a fact issue dependent on multiple factors.

Examples of situations in which an in loco parentis relationship may be found include where a grandparent takes in a grandchild and assumes ongoing responsibility for raising the child because the parents are incapable of providing care, or where an aunt assumes responsibility for raising a child after the death of the child’s parents. Such situations may, or may not, ultimately lead to a legal relationship with the child (adoption or legal ward), but no such relationship is required to find in loco parentis status. In contrast, an employee who cares for a child while the child’s parents are on vacation would not be considered to be in loco parentis to the child.

On top of that, failure to pass the bills means states will not receive the much-needed $23 billion to pay for sharply rising Medicaid costs.  (The great recession has swelled the ranks of those eligible for health insurance through Medicaid.)  Without this money, states will be forced to impose even greater cut backs, which will mean lost jobs for teachers and other state employees.

Republicans say they oppose the bill on the grounds that it raises the deficit, but what they really oppose are the small tax increases (such as one on hedge fund managers) that would be used to pay for the bill.  Disappointingly, the NY Times notes that the “Obama administration has not fought aggressively for the legislation.”  It appears the President is not focusing on jobs, which should be his highest priority.

When it comes to paid maternity leave, the United States is in the postpartum dark ages.  One hundred and seventy-seven nations — including Djibouti, Haiti and Afghanistan — have laws on the books requiring that all women, and in some cases men, receive both income and job-protected time off after the birth of a child. But here, the Family and Medical Leave Act of 1993 provides only unpaid leave, and most working mothers don’t get to stay home with their newborns for the 12 weeks allowed by the law. Many aren’t covered by the FMLA; others can’t afford to take unpaid time off. Some go back to work a few weeks after giving birth, and some go back after mere days.

The Senate has yet to act.  Because the unemployment benefits have expired, unemployed workers are losing benefits right now, and will cotninue to until the Senate passes a matching bill.  The N&O has this article on effects to workers in North Carolina.  It is imperitive that the Senate quickly pass a bill to extend the unemployment benefits program, and include an extension of COBRA benefits.  With the unemployment rate still near 11% in North Carolina, unemployed and uninsured workers cannot afford more delay from Congress.

In other FLSA news, the Health Care Reform legislation (technically the Patient Protection and Affordable Care Act) contained a little-noticed provision that requires employers to provide breaks for nursing mothers.  The amendment will require all employers subject to the FLSA to provide rest breaks to mothers who wish to express breast milk.  The new law states that employers with fewer than 50 employees are not required to provide the breaks “if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.”  DOL regulations explicating the provision are sure to follow.