Defining family for purposes of family caregiving leave

Thanks to Nan Hunter for alerting me to the proposed regulations implementing my favorite family leave policy: the one that allows federal government employees 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." I've had numerous posts on this topic. I love the current policy because it allows employees to define their own family members. Whenever advocates for marriage equality cite the unfairness of preventing one partner from caring for another who is ill, I always respond by arguing that the solution to that problem isn't marriage --- it's an employee leave policy like the federal government's! Such a policy encompasses same-sex couples but also ensures that unpartnered LGBT individuals, who may be estranged from or live far from their families of origin, can receive care from the people they consider members of their families of choice.

The proposed new regulations make clear that "domestic partners" are included. Appropriately, the definition of domestic partners requires commitment and some shared responsibility for each other's "common welfare and financial obligations," but it does not require living together. It also encompasses different sex couples. No couple must marry, or register with the state as domestic partners, or enter a civil union, to qualify for the leave. The proposed regs also make explicit that the child of a domestic partner is in the category of children one may use sick leave to care for, but, again, such children were always covered because the standard has always included (and continues to) all children to whom the employee stands "in loco parentis" (in other words, functions as a parent).

Most importantly for my analysis, the broad definition of family remains. The regulations read:

"We are not re-defining the phrase ‘‘[a]ny individual related by blood or affinity’’ whose close association with the employee is the equivalent of a family relationship. We have broadly interpreted the phrase in the past to include such relationships as grandparent and grandchild, brother and sister-in-law, fiance´(e), cousin, aunt and uncle, other relatives outside definitions (1)–(4) in current 5 CFR 630.201 and 630.902, and close friend, 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."

The late Senator Ted Kennedy was the lead sponsor of the "Healthy Families Act," proposed legislation that would require private employers to provide paid sick leave to their employees. It includes the same definition of whom a worker must be allowed to use their leave to care for as that contained in the standard for federal employees. There is also a movement to get states to pass such laws. Every paid sick leave bill has a definition of the family members the employees may use their leave to care for. I have long argued for the definition in the Healthy Families Act, and I continue to do so.

States with super-DOMAs (those prohibiting recognition of all unmarried couples as well as same-sex marriages) are probably unable to pass a paid sick leave law that includes "domestic partners." But such states can definitely use the broader definition of family. That definition does not single out couples for protection; it simply says that employees must be able to use their sick leave to care for the people closest to them whom they consider members of their family. It's been working for the federal government for 15 years. It respects diverse family relationships. It helps employees balance their work and caregiving responsibilities. And from a LGBT rights perspective it respects all our close relationships, not just those that mirror heterosexual marriage.

I have no problem with changes that specify that same- and different-sex couples are included regardless of marital status. I'm just thrilled they made it crystal clear that the broader definition of family remains. And I'd like to see LGBT rights groups advocate that broader definition in federal and state legislation.

DC PASSES PAID SICK LEAVE...INCLUDING LEAVE TO CARE FOR SICK FAMILY MEMBERS

On Tuesday, the District of Columbia became the second city (after San Francisco) to require employers to give employees paid sick leave. Some last minute exemptions weakened the bill, which you can learn more about from the D.C. Employment Justice Center. Last summer, I testified before the D.C. City Council urging that the leave be available to care for a broad definition of "family members." Unfortunately, the City Council did not go as far as I hoped; they did not give private employees in D.C. the same protection that federal employees have 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." But they did include the ability to use one's sick leave to care for a person the employee has lived with for a year in a "committed relationship" which is a "familial relationship...characterized by mutual caring and the sharing of a mutual residence." This means same-sex and different-sex partners don't have to be registered as domestic partners to use their leave for this purpose and that two people don't need to be a "couple" to use this leave to care for each other as long as they live together in a relationship of mutual caring. An employee can also use his or her sick leave to take care of a child in the employee's home "for whom the employee permanently assumes and discharges parental responsibility." The employee does NOT need to be the legal or biological parent of the child. This law is a step in the direction of valuing all families, although the federal employee definition is much better because it does not require living together.

Federal government employees can ALREADY use their sick leave to care for partners -- did no one tell Obama that?

Early news says that one of the benefits Obama is extending to gay federal employees is the ability to use their sick leave to care for partners and their children. Well -- news flash! They already have this right.

Federal government employees can use their own 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." Much is made of openly gay OPM head John Berry. Well, it's his department that implements this very policy. Read it here. This definition extends to same-sex partners, but it extends beyond that, to the family relationships that LGBT folks (and straight people) often develop beyond partners.

This policy reflects a deliberate decision to recognize a broad definition of family. The original proposal was much narrower. When OPM adopted this broader definition, it said: "The broader definition recognizes that in today's society there are both traditional and nontraditional families and that the responsibilities placed on the employee are the same in both cases." (That's from the Final Rule in the December 2, 1994 Federal Register....yes it's been the law since 1994).

What makes me angry about today's action is that it obliterates the importance of defining family broadly when it comes to balancing work and family responsibilities. This week Congress held a hearing on HR 2460, the Healthy Families Act, which would require private employers to provide paid sick leave. Employees would be able to use their leave to care for sick family members...defined exactly as the definition now reads for federal employees.

Gay people don't just have partners and children. We have families beyond that which mirrors heterosexual marriage. Many are estranged from parents or have moved away from their families of origin to communities more accepting of LGBT people. These relationships matter a lot...enough to generate caretaking responsibilities when someone falls ill. The fight for same-sex marriage has in many ways narrowed the discussion of family in the gay community and in the minds of straight allies.

So let's give credit to Clinton's OPM for instituting a truly gay friendly and family friendly sick leave policy for federal employees. Will someone now please tell Obama?

OHIO PAID SICK LEAVE CONTINUED

I posted a couple of weeks ago about the narrow definition of family member in the Ohio Paid Sick Days initiative. Since then, I've spoken with the initiative's campaign manager, Brian Dunn, and looked into the role of Equality Ohio and other gay rights groups.

What I have to report is both sad and infuriating.

Ohio has a Defense of Marriage Act (DOMA) that bars marriage and recognition of marriage for same-sex couples but also says the state “shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effect of marriage.” Perhaps Ohio could not mandate paid sick leave that employees could use to care for a sick unmarried partner. That doesn't really create a "legal status," but someone could argue that it does.

But, as my earlier post pointed out, there are at least two good alternative options: include anyone who is a member of the employee's household or include the definition that federal workers now have -- anyone related by blood or affinity whose close association with the employee is the equivalent of a family relationship. The latter definition is in Senator's Kennedy's Healthy Families Act.

Brian Dunn told me that Ohioans for Healthy Families, a coalition spearheaded by SIEU, consulted with their lawyers and was told that a more inclusive definition would not be possible given the state DOMA. This is just dead wrong. Workers have households containing a variety of individuals; allowing a worker to balance work and family responsibilities by using sick leave to care for a sick household member would not be "recognizing a legal status" between the worker and the sick household member that "approximated marriage."

Sure, one of the right-wing groups that pushed for the Ohio DOMA might challenge the law. They would lose. Last year the Ohio Supreme Court ruled, 6-1, that the state could prosecute a man for violence against a woman he lived with "as a spouse" without running afoual of the state DOMA. In the lead-up to the case, one of the strongest proponents of Ohio's DOMA said it would not violate DOMA to make domestic violence against any household member a crime.

So now we know where Ohioans for Healthy Families was coming from. I blame both bad legal advice and what I imagine to be an inability to tolerate even the slightest chance that a right-wing maniac would challenge the law. Proponents of the initiative decided it was better to sacrifice the variety of households, including those in which many same-sex couples live. I repeat what I said in my earlier post. Shame on them.

Now as for the gay rights groups, they were not asleep at the wheel. The gay community knew the campaign excluded them, and Equality Ohio voted to oppose the measure. I have since heard that Equality Ohio voted to remain neutral on the initiative, but I have been unable to confirm this. The Human Rights Campaign was involved as well, and dealt directly with SIEU. They did supply language such as the definition in the Healthy Families Act. The initiative's sponsors were unmoved.

So this leads up to the obvious question...support the initiative or not? It's a painful choice. Is there a way to vote for this initiative but send a loud and clear message to SIEU and to all the state level groups working on paid sick leave that what they did was unacceptable and unnecessary and should not be repeated elsewhere? Is there a way to vote for this initiative, which goes by the name "The Healthy Families Act," while not diluting or compromising on the provision of the federal "Healthy Families Act" that includes the much broader definition?

If I lived in Ohio, I know I wouldn't just vote against this initiative. That wouldn't make my voice heard in other states and across the country. But would I vote for it, knowing this history? Well, I'd like to hear what Ohioans have to say about this...

Final OPM regs value broad range of relationships and should be model for other reforms

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.

INSPIRATION FROM THE COUNCIL ON CONTEMPORARY FAMILIES ANNUAL CONFERENCE

Thank goodness for the Council on Contemporary Families -- a group of scholars, researchers, and clinicians who care about all families and who respond to the right-wing marriage movement's attacks on family diversity. One highlight of the just-concluded annual conference: A paper from RAND researcher Jui-Chung Alan Li reporting findings, using a large data base, that divorce does not cause behavior problems in children. How silly does the vice-president of the right-wing marriage movement group Institute for American Values sound when she responds by saying: "What he's doing is controlling for so many things he's making the effects of divorce disappear"?? It is precisely because the marriage movement does NOT control for many other factors that they can blame all of our social problems on the decline of life-long heterosexual marriage. The CCF conference also featured unabashed feminists! That shouldn't be news, but all too often is when it comes to family policy discussions. Congratulations to Amy DePaul, who received one of the CCF media awards. Feminist bloggers Deborah Siegel and Veronica Arreola were inspirational. By following Veronica's blog, I learned that a paid sick leave bill has been introduced in the Illinois legislature. It defines "family members" to include anyone the employee has lived with for six months. That's moving us closer to valuing all families...although I still would like a state to adopt the definition of "family member" in federal law, which includes "any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship." If the federal government can allow its employees to care for their families however they define them, why not states and private employers as well??