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LABOR & EMPLOYMENT LAW — 04/10/09

Gay rights group hails introduction of Family Leave Insurance Act

The Family Leave Insurance Act of 2009 (H.R. 1723), introduced on March 25 by four House Democrats, would amend the Family and Medical Leave Act to provide up to 12 weeks of paid leave benefits to workers who need to care for an ill family member or new child, to treat their own illness, or to deal with an exigency caused by the deployment of a member of the military. Along with its paid leave provisions, which drew the most attention, H.R. 1723 also would amend the Act to grant FMLA leave to employees who need to care for an ill domestic partner or the child of a domestic partner --thereby affording the protections of the FMLA to lesbian, gay, bisexual and transgender (LGBT) employees.

"All American workers need time off to care for themselves and their loved ones," said Joe Solmonese, president of the Human Rights Campaign (HRC), a civil rights group LGBT Americans, hailing the recent introduction of the bill in the 111th Congress. Currently, millions of lesbian and gay Americans in long-term relationships are unable to take FMLA leave to care for their same-sex partner, HRC notes. While some states and private employers have filled this gap in coverage by offering family medical leave for workers to care for a domestic partner, an expansion of the FMLA is needed in order to cover millions of unprotected American families, the advocacy group contends. The Family Leave Insurance Act remedies this "glaring inequality" by providing essential benefits to employees seeking to take leave to care for a domestic partner and their children.

The FMLA requires covered employers to give eligible employees up to twelve weeks of unpaid leave for their own serious health condition or to care for a family member with a serious health condition. However, the FMLA has many shortcomings with respect to lesbian, gay, bisexual and transgender employees, specifically for employees with same-sex partners or spouses, and those employees who are not the legally-recognized parents of their partner's children --family members on which the FMLA is silent. Currently, the FMLA does not require employers to provide leave to care for a same-sex partner or spouse, as federal law does not recognize same-sex relationships. In addition, it is unclear whether, in every instance, the FMLA would cover the child of a same-sex partner or spouse if the employee is not the child's legal parent. Employers are not mandated by the FMLA to provide an employee leave for the birth and care of a child to which an employee is not a legal parent unless the employee stands "in loco parent is." This provision essentially requires individual courts to determine whether a person stands in loco parentis.

Many state and local governments and private employers already include families headed by same-sex couples for purposes of family leave. "These employers realize that not applying FMLA protections to all workers greatly limits the Act's intent to provide a stable and continuous workforce by helping employees retain their jobs when a family emergency strikes," HRC notes.

More expansive state law. State laws can and sometimes do raise the floor of medical leave requirements. For example, on January 1, 2005, California enacted the California Family Rights Act (CFRA), which requires employers doing business in California with more than 50 workers in any state to give California employees 12 weeks of unpaid leave to care for a seriously ill domestic partner. Under this law, registered domestic partners are entitled to the same benefits as spouses. Current California law limits registered domestic partnerships to same-sex couples or opposite sex couples over the age of 62. California, Connecticut, the District of Columbia, Hawaii, Massachusetts, New Jersey, New Mexico, Oregon, Rhode Island, and Vermont provide some type of family and medical leave for same-sex couples.

Nowhere are the shortcomings of the federal FMLA more apparent than when it intersects with more expansive state laws, HRC notes. In certain circumstances, state laws that are more inclusive than the FMLA can result in required dual benefits for employees. FMLA regulations mandate that FMLA benefits run concurrently with any state FMLA-type benefits that an employee is entitled to claim. If an employee first claims benefits under a state FMLA-type law for a relationship not recognized under the federal FMLA, such as a domestic partner, the federal FMLA does not apply and is not triggered. Therefore, employers may occasionally find themselves required to give both state and federal FMLA benefits to certain employees. For example, if an employee first takes state FMLA-type leave to care for a sick partner, the employee may then later take federal FMLA leave to care for a sick parent. Since an employee's rights under the federal FMLA may not be waived, they are entitled to take both the state FMLA-type leave and the federal FMLA leave. However, if an employee first takes all allowable FMLA leave to care for a sick parent, the employee is not later entitled to take FMLA leave to care for a sick child, as both relationships are covered under the FMLA.

This scenario could also occur in a state without a more expansive law if an employer adds domestic partners to its definition of family members for which an employee is eligible to take leave. The concern may be partially alleviated by drafting an employee policy that limits time off to care for family members included in the employer policy to 12 weeks unless otherwise required by law. By doing so, employers can eliminate one of two possible "double-dipping" scenarios; an employee who first takes off 12 weeks to care for his or her ill mother (or other FMLA-defined dependent) would not then be able to qualify under the employer's policies for any more leave to care for his or her domestic partner or other dependents. Such double-dipping may continue to be a consequence of the FMLA's non-inclusive scope until corrective legislation eliminates this gap.

Private employers increase protections. Regardless of whether state law raises the floor of medical leave benefits, private employers are free to develop more comprehensive medical leave policies. Recognizing the role of competitive employment benefits in attracting and retaining a competitive workforce, many private-sector employers do just that --offering more comprehensive benefits than those required by law. Thus, while current federal law does not require equal leave rights for LGBT employees, many employers opt to extend FMLA-equivalent benefits that recognize same-sex partners and children of partners.

As of Janary 2009, the HRC Workplace Project tracked 461 employers, including companies such as Eastman Kodak, Imation Corp, and Hewlett-Packard, that extend FMLA-type leave to employees with same-sex domestic partners. In 2008, 61 percent of Fortune 100 employers granted FMLA-equivalent benefits to domestic partners; 36 percent of Fortune 500 did as well.

For private employers that seek to afford full and equal leave protections to their LGBT employees, HRC recommends that, when defining the family members for which an employee is eligible to take leave, employers include in those definitions same-sex partners as well as the children of a same-sex partner, regardless of biological or adoptive status. In addition, employers should include Gender Identity Disorder and procedures relating to gender transition as a qualifying condition for employer-granted medical leave for both the employee and their partners.

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

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