Some Family Leave Rights Extended to Same-Sex Couples

The U.S. Department of Labor dramatically expanded Family and Medical Leave Act rights for members of same-sex and other “nontraditional” families June 22. Gay rights groups had sought the change.

The Labor Department’s policy statement declared that like husbands and wives in traditional marriages, caregiving adults in same-sex, unmarried, or other nontraditional families may take up to 12 weeks of unpaid FMLA leave when a child is born, is adopted, or has a serious illness.

The new rules, however, still don’t allow most same-sex partners time off from work to care for each other during illnesses. Congress has refused to consider amendments to the Defense of Marriage Act, which sets national policy against same-sex marriages.

Previously, nontraditional family members had FMLA rights only if a biological or adoptive parent was dead, in jail, disabled, or otherwise unavailable for a substantial period. Moreover, the family member who wanted leave had to be providing financial support for the child.

The new policy says that persons providing day-to-day care for children under 18 can take FMLA leave to care for the child during serious illnesses even if a biological or adoptive parent is available, and even if the caregiver does not provide financial support. The FMLA, the Labor Department points out, does not restrict the number of parents a child may have.

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The following scenarios illustrate how FMLA rights are expanded:

• An employee’s same-sex partner conceives or adopts a child. The employee can take a “bonding leave” of up to 12 weeks when the child is born or placed or during the child’s first year. He or she can also take FMLA time off if the child has a serious medical condition prior to age 18.

• A man who moves in with his girlfriend and her two-year-old can take FMLA leave to provide care during the child’s serious illness even if the child’s biological father is supporting the child.

• A couple with a young child divorce. Both remarry. All four parents can take FMLA leave from their employers if the child needs care during a serious illness.

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• A six-year-old lives with his mother, uncle, aunt, and grandparents. If all provide day-to-day care, any of them can take FMLA leave for the child’s serious illness.

• A couple takes in a 15-year-old exchange student. Both may take FMLA leaves if the child becomes seriously ill.

If the employer questions whether the employee has a relationship to the child, the employee need only submit a simple statement that a “family relationship” exists.

Employers are expected to challenge the new policy in court. They may cite a 1995 FMLA regulation that arguably requires parents seeking leave to provide both day-to-day care and financial support. Unless the courts take a unified stand against the Labor Department, however, arbitrators ruling on union-member FMLA cases are likely to follow the new policy.

As for same-sex partners who may need to care for each other during illnesses, the FMLA has always provided leave rights for “spouses,” but Labor Department regulations define a spouse as a husband or wife under state marriage law. That means that only in the places that allow same-sex unions—Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and Washington, D.C.—does the FMLA provide leave for such partners.

Attorney Robert Schwartz is the author of The FMLA Handbook.