The U.S. Department of Labor (DOL) is expected to issue guidance on Wednesday that will grant expanded Family and Medical Leave Act (FMLA) rights to gay and lesbian employees. The development, however, may not be as dramatic as it sounds.
Initial overnight reports made it appear that the Obama administration was expanding the FMLA to allow employees to take leave to care for a same-sex partner. However, it appears that isn’t the case. Several new outlets are now reporting that the expansion will apply only to the limited situation when an employee requests leave in relation to the birth or adoption of a same-sex partner’s child.
What the ruling does. The practical significance of the guidance appears to be somewhat limited. The FMLA has long been interpreted as granting leave to employees who are “in loco parentis” to a domestic partner’s child — which means that they care for and/or financially support the child on a regular basis. The in loco parentis standard allows employees to take leave to care for a domestic partner’s child who suffers from a serious health condition.
It appears the main differences to be implemented by the new ruling are that employees will now be allowed to take leave to (1) be with a partner who is giving birth and (2) bond with a partner’s healthy newborn or newly adopted child. In most cases, domestic partners who wish to adopt a child are prohibited from doing so as a “couple.” Their only option is for one of them to adopt as a single parent. The other typically isn’t recognized as the child’s legal parent. Nor is the partner who doesn’t give birth considered a legal parent (unless they adopt the child, which is allowed in some states but can take some time).
What the ruling doesn’t do. The DOL declined to expand FMLA coverage to employees who request leave to care for a same-sex partner. From a legal perspective, that makes sense. The FMLA statute defines the term spouse as “a husband or wife, as the case may be.” A separate statute, the federal Defense of Marriage Act, prohibits federal laws that refer to “spouses” as being interpreted to include same-sex partners, marriages, or civil unions. Therefore, as the law stands now, the DOL simply doesn’t have the authority to grant FMLA leave rights to same-sex couples beyond the situations involving their partner’s children.
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