Limited Leave (Updated)

Labor Department changes to family leave policy expected on Wednesday will allow for coverage of same-sex partners' children

Changes to be announced tomorrow, June 23, regarding expansion of family-leave benefits for gay and lesbian families will be limited to an expansion for individuals who are the non-legal, non-biological parents of their same-sex partners’ children, a person familiar with the coming changes told Metro Weekly on Monday evening, June 21.

Following a report from the Associated Press about the expansion of the Family and Medical Leave Act (FMLA), further information about the Labor Department’s planned changes to the interpretation of the 1993 law securing leave for employees to care for their family members suggests that the changes are limited to those that would not conflict with the Defense of Marriage Act (DOMA).

The changes will be limited to allowing an individual who is the non-legal, non-biological parent of his or her same-sex partner’s child or children to take FMLA leave to care for a child in such a circumstance, according to the person.

The changes, the person said, also would apply if one’s partner is having a child that is not the person’s child biologically or legally or if a person’s same-sex partner is adopting a child and the person, due to state law, doesn’t have a legal relationship to that child.

A second person familiar with the changes confirmed that account of the new FMLA interpretation Monday evening.

Winnie Stachelberg, senior vice president at the Center for American Progress, said, “I think this is a big step forward and shows the administration’s commitment to ‘open up their toolbox’ for the LGBT community.”

The Family Equality Council’s communications director, Kevin Nix, likewise supported the change.

“Labor’s clarification is important for the one million LGBT parents raising two million kids,” Nix wrote to Metro Weekly. “Like straight parents, gay parents can qualify for family medical leave to take care of their children.”

Nix noted that many families are led by same-sex couples, adding, “One out of five gay couples, and one out of three lesbian couples, are raising kids today.”

Stachelberg emphasized, though, that the changes are limited.

“[A]t the end of the day, to address challenges that face gay, lesbian, bisexual and transgender Americans,” she said, “not only will the administration need to take regulatory actions like this, but Congress will have to make changes too.” 

Stachelberg’s reference to congressional action was aimed at DOMA, the 1996 law that defines “marriage” and “spouse” as being limited only to opposite-sex couples.

The FMLA statute requires employers to give 12 weeks of unpaid leave to employees providing care for a “spouse,” “child” or “parent.” DOMA, therefore, limits the expansion of coverage to married same-sex couples.

The “child” portion of the law, however, includes coverage for those who are acting “in loco parentis,” which refers to those taking care of a child as a parent. That wording is broad enough to allow for the expansion expected tomorrow as to the children of same-sex partners.

The impact of the changes are not clear, as many private companies already have taken steps voluntarily to include same-sex couples and families in FMLA leave policies. In 2008, according to the Human Rights Campaign, 61 of the Fortune 100 companies offered what HRC called “FMLA-equivalent partner benefits.”

Additionally, as detailed by HRC and the National Conference of State Legislatures, at least 12 states and the District have expanded coverage protections to offer some form of family and medical leave for same-sex couples and families.

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