The Obama administration is expected to announce this week that it will allow gay and lesbian workers the right to have unpaid leave to care for the children of their same-sex partners under a new interpretation of the 1993 Family and Medical Leave Act (FMLA):
President Obama this week will expand the rights of gay workers by allowing them to take family and medical leave to care for sick or newborn children of same-sex partners, administration officials said Monday.
The policy will be set forth in a ruling to be issued Wednesday by the Labor Department’s wage-and-hour division, the officials said.
Under a 1993 law, people who work for a company with 50 or more employees generally are entitled to 12 weeks of unpaid leave to care for a newborn or for a spouse, son or daughter with “a serious health condition.”
The new ruling indicates an employee in a same-sex relationship can qualify for leave to care for the child of his or her partner, even if the worker has not adopted the child legally.
The ruling, in a formal opinion letter, tackles a question not explicitly addressed in the 1993 Family and Medical Leave Act. It also is one of many actions taken by the Obama administration to respond to concerns of gay men and lesbians within the constraints of the Defense of Marriage Act, which defines marriage as a union between a man and a woman as husband and wife.
Many private businesses already have such provisions and go beyond this to allow gay and lesbian workers leave to care for same-sex partners as well, however adoption and partnership rights differ from employer to employer and state to state.
You will notice the reference to “spouse” in the above excerpt. The importance of the term and its relevance to this change is to be found in how this new reading of the law is to be squared with the federal Defense of Marriage Act. The act prevents the federal government from recognizing same-sex marriage and means that the government is unable to class same-sex couples as “spouses”. According to reports, Labor Department lawyers have concluded that there is enough leeway in the law to allow people in same-sex relationships to qualify for family and medical leave if they are responsible for supporting and caring for a partner’s child.
However, due to the fact that the FMLA makes explicit use of terms like “spouse”, this change will result in a much narrower set of rights than those afforded heterosexuals and will not be able grant gay and lesbian workers leave to care for a same-sex partner.
From Metro Weekly:
The changes will be limited to allowing individuals who are the non-legal, non biological parents of their same-sex partner’s children to take FMLA leave to care for those children, 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.
The law will also have relevance for other family units, as ABC News was told by an unnamed source:
The administration official said the new interpretation takes a more expansive view of what a family is, include the legal term “in loco parentis” — “people who act as parents. So, yes, gay parents would count, but also it’s the grandmother that has a set relationship with the grandchild.” The expanded interpretation will not apply to same sex partners caring for each other.
Until the FMLA is amended, or the appropriate section of the Defense of Marriage Act is struck down, same-sex couples will continue to suffer under this disparity in the law. The New York Times reports that Rep. Carolyn B. Maloney, (D-N.Y.) has introduced a bill into Congress to amend the FMLA to widen the definition of “spouse” to include “a same-sex spouse as determined under applicable state law.” This would seem to skirt the problem of the Defense of Marriage Act by allowing individual states to decide this issue, yet this too will have to be limited in its scope and impact so as not to violate the Defense of Marriage Act.
As mentioned above, this policy change will be a reinterpretation of the existing FMLA and will not be done through Congress. As such it will be open to the discretion of the next president and will be vulnerable in this regard. While a marked step, such a limited change will be unlikely to put the White House back on good terms with LGBT rights advocates who see the administration’s glacial slowness on key LGBT rights issues such as the Defense of Marriage Act and the Employment Non-Discrimination Act as being a clear failure to live up to Obama’s campaign promises and his self identifying as a “fierce advocate” for gay rights.
In particular, the administration has been criticized for its use of executive orders to make small, impermanent changes, such as its extending worker benefits and protections to federal employees earlier in the year, but its failure to issue an executive order to halt military discharges under the U.S. Army’s “Don’t Ask, Don’t Tell” (DADT) policy even though it is the one area in which an executive order would be entirely appropriate given that it would immediately halt discharges until DADT is finally and fully repealed.
Contrary to some reports, the current legislative action on repealing DADT that is being considered in Congress at the moment and is due to go before the Senate next month, will not repeal the ban outright and as such discharges will continue. Put simply, the amendment making its way through Congress will remove one roadblock to repealing the ban, but it will then put military leaders firmly in the driving seat on deciding when and if the repeal should go ahead. That is on the provision, of course, that the change in the law can even be passed as reports indicate that if the defense spending bill to which the repeal effort is being attached contains defense projects Obama has labeled as wasteful, the president may veto, DADT amendment or not.
Therefore, the aforementioned change to allow gay workers partial family rights, while obviously welcome, is once again a small step and not one of the game changers that Obama promised. As such, it is unlikely to placate gay rights advocates who have now tired of the big speeches when they are given only minimal results. It does, however, serve to highlight the insidious nature of the Defense of Marriage Act and why it must be repealed.
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