I posted last fall about proposed regulations from the Office of Personnel Management concerning for whom a federal employee may use sick or bereavement leave. Yesterday, OPM issued the finals regs, in the process responding to comments received on the proposed regs.
The lesson from the definition of family in these regs is not just how family is defined, but the chronological process getting us to this definition. Had employees previously been able to use leave only to care for a spouse, I would have expected, in response to the President's directive to extend to same-sex couples whatever benefits did not require Congressional action, that some version of same-sex only "permanent partners" or "domestic partners" would have been added. After all, immigration reform seeks to add same-sex permanent partners, and extension of employee health insurance benefits seeks to add same-sex domestic partners. No talk of a broad definition of family there, and no ability for different-sex couples to eschew marriage if they wish to benefit from the relevant law. (The vast majority of countries that allow same-sex partners of citizens to immigrate also allow the unmarried different-sex partners to immigrate; it's the relationship that counts, not the formal legal status. Readers of this blog know I write frequently about how much marriage matters in American law (and shouldn't) as compared with all other Western countries...see a post here about Canada.)
Well for many years (dating back to Clinton), federal employees have been permitted to use their sick leave to care for "any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship." The regs finalized yesterday do not eliminate this definition; they merely provide specific examples of relationships that already fall within that definition, making explicit what the law already required (and acknowledging that there had been some inconsistency among agencies about applying the legal standard). The commentary to the regs states that the government is providing no additional benefit but rather clarifying that domestic partners (same-sex and different-sex) come within the existing definition.
In leaving in place the broad language, the commentary makes clear that a "close friend" can also be covered, "to the extent that the connection between the employee and the individual was significant enough to be regarded as having the closeness of a family relationship even though the individuals might not be related by blood or formally in law." This category is critical for LGBT individuals, especially those without partners, because our "chosen family" is so often our only or primary family. OPM specifically declined to provide an exhaustive list of relationships that come within the "close association" clause, prefering a case-by-case determination.
I lament LGBT advocacy that focuses on achieving for same-sex couples what heterosexual couples have -- the access to marriage (or its equivalent), with marriage the gatekeeper to all benefits and obligations, or, when marriage is not available, the access for same-sex partners to what married heterosexuals have (and no option other than marriage for different-sex couples). My book urges a much broader recognition of families and relationships, and I specifically advocated the federal sick leave definition as a model for all laws designed to facilitate a person's caretaking responsibilities.
The broad definition came at a time when explicit acknowledgement of same-sex partners might have triggered a political response. The language on "close association" and "equivalent of a family relationship" got so little attention that I had never heard of it and was shocked when I found it (and found regulations making clear that "nontraditional" families were included). Indeed, as I spread the word about this leave policy, I found no one in a gay advocacy group who had heard of it (except gay federal employee groups). This broad view of family is so much better than the narrow lens of marriage, but has been all but eclipsed by marriage advocacy. But the reality is that the new regulations could not cut back on the existing policy; that would have been politically indefensible. But broadening from marriage (or civil union/domestic partnership) to a broader definition just does not seem to happen. Ever. And that's a loss to far too many in our community.