FEDERAL GLOBE

ISSUE PAPER

Subject: Expanding the Family and Medical Leave Act (FMLA) to Include Domestic Partners

Background: Public Law (P.L) 103-03 amended title 5, United States Code to create an entitlement of 12 weeks of leave without pay (LWOP) for employees for the birth and care of a son or daughter; the placement of a son or daughter with the employee for adoption or foster care; the care of a spouse, son, daughter or parent of the employee who has a serious health condition; or, a serious health condition of the employee that makes the employee unable to perform the essential functions of his or her position. An employee may elect to substitute annual leave and/or sick leave consistent with current law and Office of Personnel Management’s regulations for any unpaid leave under FMLA.

P.L. 104-199, The Defense of Marriage Act, defined marriage as a legal union between a man and a woman. It further defined spouse as “…a person of the opposite sex who is a husband or a wife.” Since a domestic partner does not meet the Federal legal definition of spouse, federal employees are not entitled to leave under this act to care for a domestic partner who has a serious health condition, or to take leave for adoption or foster care purposes if their domestic partner is the adoptive parent or designated foster care parent.

Discussion: Prior to the FMLA, agencies had a great deal of discretion in making a decision to either approve or disapprove leave when an employee requested LWOP or sick leave. FMLA changed that by entitling employees to unpaid leave to handle certain family situations, including becoming an adoptive or foster parent. The act also provided employees with the opportunity to change unpaid leave to paid leave if circumstances warranted. However, this act also resulted in a narrow definition of family.

OPM has issued additional regulations, which are not codified in law, concerning sick leave to care for a family member with a serious health condition; routine family care, and bereavement purposes. These regulations broadly define a family member to include “any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship,” thus including domestic partners. However, these regulations also give agencies greater flexibility to deny leave, whether it be paid or unpaid; and, establish certain limitations for approval, unlike FMLA where approval is mandated. These regulations can also be revoked.

Consequently, the FMLA should be amended to ensure that employees are able to take the leave necessary to take care of their domestic partners, if that domestic partner contracts a serious health condition, or becomes an adoptive or foster parent.

Federal GLOBE is the umbrella organization for Gay, Lesbian, Bisexual and Transgender employee support groups in Federal workplaces. Its purpose is to eliminate prejudice and discrimination in the federal government based on sexual orientation by (1) developing and providing educational programs, materials and assistance mechanisms which address the distinctive concerns and problems of lesbians, gay men, and bisexuals in the federal government and (2) educating the general public, policy makers, and federal employees about issues of concern to lesbians, gay men, and bisexuals.