Tuesday, June 22, 2010

New FMLA regs clarify what was already the law so let's not claim this is a dramatic shift

When the Obama administration issues its regulations on taking leave to care for a partner's child under the Family and Medical Leave Act, it will simply be reiterating what is already the law. It makes me a tad crazy that the new regulations suggest they are a change. While I believe that employers might have acted in violation of the law in the past (as the story of one couple in this New York Times article suggests), the regulations implementing the FMLA have always extended the right to leave to care for a child to whom one stands "in loco parentis." Such a person is anyone who is acting as a parent to a child, and the regulations have always made clear that neither a biological nor a legal relationship was necessary.

Now the NY Times article accurately states the language of the existing regulations, but still its thrust is that the Obama adminstration is doing something new; the first sentence of the article says that Obama's actions "expand" the rights of same-sex couples with children. But adding language that explicitly names the nonbiological parent in same-sex couple is not the same as "expanding" the law when the law already covers those relationships. I would concede that the new regulations clarify the law by expliciting naming same-sex couples and their children.

This is not a minor quibble. The language of the statute referring to "in loco parentis" relationships always recognized, since the FMLA's passage in 1993, that children may be cared for by individuals who are neither a legal nor a biological parent. To fulfill the law's purpose of allowing a worker to care for a sick or newborn child without losing his or her job, the law had to encompass all the circumstances under which an employee may end up with day-to-day responsibilities for a child's care and support. And it did. From the beginning. And if the statute was not clear enough, the original regulations explicitly stated that a legal or biological relationship was not required.

What more did a nonbio mom or dad need to take leave to care for a partner's biological child? Nothing. And many nonbio parents have taken such leave. (I did an informal survey of lawyers around the country about this in 2007, and this confirmed the availability of the leave for nonbio parents). The Tucson nonbio mom mentioned in the NY Times article could have filed a complaint against her employer, and she would have won -- not to take care of her partner, but to take care of their child. If she assumed the law would not apply to her parental relationship because it did not apply to her partner relationship, she was wrong.

I'm dismayed about the coverage of this for another reason. In my mind it plays into the idea that if a same-sex couple is not explicitly included within a law then the law provides them no benefits. But this wasn't true for the federal employee sick and bereavement leave policy that was the subject of final regulations last week. (See my earlier post.) Same-sex couples had been entitled to use their sick leave to care for one another because they fell within the larger category of those with a "close association." And that broader formulation meant that relationships beyond "couples" could also qualify for the leave.

For FMLA leave, same-sex couples can't be named because that would require a statutory change, but parent-child relationships exist independent of couple relationships. The "in loco parentis" standard was always the right standard; it's not because of a woman's relationship with her partner, but rather because of her relationship with the child that she should be allowed FMLA leave. And that's been in placed for the better part of the last two decades.

There is value in explicit naming. But it also turns the issue into part of the culture war about same-sex relationships and same-sex marriage. That's not where it belongs. No one should object to an adult taking leave to care for a child for whom s/he has day-to-day responsibility.

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