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How Much Will New Rules for Family and Medical Leave Act Help Same-Sex Couples? Not Much

June 22nd, 2010 1 comment

Some good news is coming in about the Labor Department’s imminent announcement of new regulations that allow workers to take (unpaid) leave in order to care for their children.

Here’s the important language from the Family and Medical Leave Act:

§ 2612.  Leave requirement

(a) In general.
(1) Entitlement to leave. [A]n eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following:
(A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.
(B) Because of the placement of a son or daughter with the employee for adoption or foster care.
(C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.

Apparently, the new regulations will interpret “son” and “daughter” broadly enough to cover those cared for by those who “act as” parents, even in the absence of legal or blood ties to the child. This interpretation, of course, will benefit not only non-bio, non-adoptive LGBT parents, but all similarly “non-traditional” (whatever that means) parents. Like the Obama Administration’s proposed new rules on hospital visitation, these changes will benefit not only the LGBT community. Smart politics there.

But the story has been misreported (by the AP) as allowing LGBT workers to stay home to care for their partners. That can’t be done under this law, which the Labor Department has no authority to countermand.

The Labor Department can probably expand the definition of “son” or “daughter” in this way, but can’t do so with “spouse” — because of the Goddamned Defense of Marriage Act.

Creative interpretation of existing law can only get you so far. This initiative, while commendable, only underscores that DOMA — a law that the Obama Administration continues to defend in court and has done almost nothing to work toward repeal — must be repealed.