A report coming out of the Washington Post is indicating the Department of Labor is about to issue a new interpretation of the Family and Medical Leave Act of 1993 so that the provision will apply to same sex couples.
The Labor Department intends to issue regulations this week ordering businesses to give gay employees equal treatment under a law permitting workers unpaid time off to care for newborns or loved ones.
Labor Secretary Hilda Solis planned to announce Wednesday that the government would require employers to extend the option that has been available to heterosexual workers for almost two decades, two officials briefed on the plan said Monday. Neither was authorized to speak publicly ahead of the announcement.
If true, this is very good news and in my opinion, for the first time represents the Obama Administration willing to take a step towards GLBT equality that is decidedly not safe. Their previous moves last summer to basically extend moving expenses to the partners of federal employees and the move earlier this year to start the (year long or more) rule making process to require hospitals accepting Medicaid to recognized same sex partners and their powers of attorney in medical decisions have been decidedly incremental, small, and insufficient. OK, its not that bold. It only applies to the children. Continue reading down to Update 2 below.
This however requires a much more radical shift that, as the Post article notes, will likely be "popular with loyal Democrats and organized labor." The article continues
The Family and Medical Leave Act allows workers to take up to 12 weeks of unpaid leave each year to take care of loved ones or themselves. The 1993 law, which also allows employees to take time off for adoptions, has previously only been applied to heterosexual couples.
The Labor Department planned to extend those rights based on a new interpretation of the law, the officials said. There was no plan to ask Congress to change the law, which means future presidents could reverse the decision.
FMLA allows employees of companies with 50 or more employees who have met certain minimum requirements (such as hours worked in the previous year) to take leave to care for their parents, spouse or children or take leave for the birth of a child. This would extend well beyond just Federal Employees, but to all Americans working for large businesses and larger medium sized businesses.
This is why this is likely to be risky and perhaps problematic legally. I just pulled up the text of the FMLA, and the Act is very specific in its definitions and in who is allowed to take the leave and for the care of whom.
While the findings of Congress prefacing the Act (found at 29 U.S.C. § 2601) state the purpose of the act is to
(1) to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity;
(2) to entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition;
(3) to accomplish the purposes described in paragraphs (1) and
(2) in a manner that accommodates the legitimate interests of employers;
(4) to accomplish the purposes described in paragraphs (1) and (2) in a manner that, consistent with the Equal Protection Clause of the Fourteenth Amendment, minimizes the potential for employment discrimination on the basis of sex by ensuring generally that leave is available for eligible medical reasons (including maternity-related disability) and for compelling family reasons, on a gender-neutral basis; and
(5) to promote the goal of equal employment opportunity for women and men, pursuant to such clause.
While those goals, especially the ones I italicized would be applicable to same sex couples and their families, the definitions contained in the act (codified at 29 U.S.C. § 2611) are fairly explicit in the family members for whom one is permitted to take leave to care for.
As I read the definitions, they absolutely can be interpreted to extend the right to take leave for the birth of a same sex spouse/partner's child or to care for a same sex spouse/partner's child if that child is sick if there is any sort of legal relationship to the child, with the standard being a relatively low ability to act in loco parentis for the child. Many states (though not a majority) have adopted standards recognizing the non-biological, unmarried partner of a child's parent as a psychological parent if there is any evidence of that person acting in a parental capacity to the child.
The text of the act however would exclude same sex spouses as the act defines spouse to "means a husband or wife, as the case may be." This would limit the scope to just those states where a same sex couple can be legally married or to couple who have been married in such states., but...the Federal Government is not permitted to recognize such persons as spouses. The heinous D[enial] of Marriage Act explicitly states
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife. 1 U.S.C. §7
If the administration plans to extend FMLA benefits to the spouses in same sex couples or same sex marriages, it will be interpreting away 1 U.S.C. §7 insofar as the FMLA is concerned and could even be a precursor to enable a lawsuit formally challenging DOMA in a manner that is likely to prevail given Congress explicit findings and purpose of equality between the sexes under the Equal Protection Clause and the promotion and preservation of the integrity of families. Under the 14th Amendment, Congress is given the explicit authority to enforce the provisions of the Amendment (See section 5, Amendment XIV), but the Supreme Court has ruled that when Congress chooses to do so it cannot do so in a discriminatory manner. Congress' authority to enforce protection from, say, sex discrimination does not include the power to abrogate it at the same time. See generally Mississippi University for Women v Hogan, 458 U.S. 718 (1982):
Section 5 of the Fourteenth Amendment gives Congress broad power indeed to enforce the command of the Amendment and "to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion . . . .". Congress' power under 5, however, "is limited to adopting measures to enforce the guarantees of the Amendment; 5 grants Congress no power to restrict, abrogate, or dilute these guarantees." Although we give deference to congressional decisions and classifications, neither Congress nor a State can validate a law that denies the rights guaranteed by the Fourteenth Amendment.
The gist is, as it would apply to this case, that if Congress moves to protect workers against sex discrimination by giving men and women equal right to take leave to care for spouses, children and parents, they can't turn turn around and use sex discrimination to limit which couples are permitted to be free of this sex discrimination.
Whereas all Obama moves of GLBT issues have been risk little to get little in the way of accolades from the GLBT community, this move is truly deserving if what is being reported pans out. We'll find out Wednesday, but I'm diarying about it now because on Wednesday morning I'll be busy taking in the view of the Grand Tetons from Schwabachers Landing heading up from Jackson to Yellowstone on vacation. I'll try to update and comment some, but I have to finish packing.
[update] While writing, mlong got a diary up on this too: Getting Sh!t Done: Gay Workers get family leave. I'm leaving this up because I have a bit more detail on the provisions in FMLA that will likely be key this change in interpretation.
[Update2]Well, it looks like I was right about the spousal coverage. Metro Weekly is reporting this will be limited to leave to for the non-legal, non-biological parent of a their same sex partner's child.
Changes to be announced on Wednesday regarding expansion of family leave benefits for gay and lesbian families will be limited to an expansion related to individuals who are the non-legal, non biological parents of their same-sex partner's children, a person familiar with the coming changes told Metro Weekly on Monday evening.
This is significantly less impressive and once again falls into the category of "WEAK".