Expansion of FMLA Gives Non-Married Partners Unpaid Leave to Care for Children

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Today, a policy is expected to be set forth by the Labor Department to expand the rights of gay workers by allowing them to take family and medical leave to care for their partner’s sick or newborn children. Secretary of Labor Hilda Solis says that the new interpretation of the law will expand to other “non-traditional” families as well, such as co-habitating adults or grandparents caring for grandchildren.

The Family and Medical Leave Act (FMLA) provides certain employees of companies with up to 12 weeks of unpaid, job-protected leave per year to care for certain family members. It is designed to help employees balance their work and family responsibilities by allowing them time away from work for caring for newborn or newly adopted children or for immediate family members with a serious health condition.

Non-traditional families were not explicitly addressed in the 1993 law, so employers were not obligated to extend benefits to non-married couples, whether they were heterosexual co-habitating adults or those in same-sex relationships. Children, “son or daughter”, was defined as a biological, adopted or foster child, a stepchild, a legal ward or a child of a person standing in loco parentis (Latin for “in place of the parent”).

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The new ruling, addressed in a formal opinion letter, does not change the law, but expands on the definition of “loco parentis” to those with responsibilities for the child, which includes the children of same-sex partners, even if the worker has not legally adopted the child.

Jennifer Chrisler, executive director of the Family Equality Council, estimates that one million lesbian, gay, bisexual, and transgender families were raising about two million children. “If you act like a parent, do the work of a parent, and raise a child like a parent, then you are a parent for the purpose of the Family and Medical Leave Act,” she said.

Although workers under the 1993 FMLA law can also use the 12 week unpaid provision for the care of a spouse with a serious health condition, the new expansion of FMLA does not allow workers to take time off to care for sick same-sex partners because federal law does not recognize such relationships. New York Representative Carolyn B. Maloney has introduced a bill to Congress to allow for this as well.

The new ruling is one of many actions taken recently by President Obama to respond to concerns of gay men and women who desire similar rights to married persons. In April, Obama announced plans to grant hospital visiting rights to same-sex partners, and the Justice Department concluded that the Violence Against Women Act protects same-sex partners.

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Comments

excellent opinion, there are other concerns related to care of family member with terminal illness and child over 18...hope the DOL would work to address such loopholes in FMLA.