FMLA for the LGBTQ Community

2013 is the twentieth anniversary of the Family Medical Leave Act. Having had to use this leave one time, I am very grateful it exists. However, many people do not realize the limitations of the Act.

From the HRC

Because federal law does not recognize same-sex relationships, the FMLA does not require employers to provide an employee leave to care for a same-sex partner or spouse.

I knew this. It is another very complicated matter because individual employers can opt to expand the protections (as can states.) But I was prompted to write about it today because I am sick and texting with my partner who is at work. She can’t come home (I’m not that sick) because she has a work appointment. Now that’s not such a big deal because she can use her paid time off to care for me should that be necessary. And over the years, she has taken days off here and there to either stay with me when I’ve been sick or accompany me to appointments – you know, like partners do.

Like partners do.
Like partners do.

But it grazes my mind that she wouldn’t be able to take FMLA should her PTO run out. It is one of those “consequences of being second class” that occur to you randomly. I have the prospect of a routine surgery on the horizon. And she’ll be able to take time off to be with me that day and take me to follow up appointments, etc.

But what if? What if I were facing a lengthy recovery time and unable to be home alone? We’d be screwed. Ironically, my father would be eligible to take off from his work to care for me – his 42 year old daughter who doesn’t live at home.

Blogger and activist Pam Spaulding has been very public about the impact of this constraint on her health.

FMLA turns 20 today. And I’m one of those beneficiaries of it as we speak. I’m on unpaid leave, but a big hole in FMLA is that Kate cannot take FMLA leave to care for me post-surgery. From the post: “It doesn’t cover care for a grandparent, same-sex partner, or many others. Workers are not eligible to use FMLA leave to care for “parents-in-law, grandparents, grandchildren, siblings, domestic partners, or same-sex spouses,” ignoring the reality of today’s families.” Also, 2 in 5 workers are not eligible for its protections (small businesses are exempt), and, of course, most of us cannot afford to take the 12 weeks of unpaid leave FMLA grants.

Pam’s wife Kate is not eligible to use FMLA to care for Pam during her recovery. Ironically, Pam’s employer (Duke University) does opt to extend coverage to same sex partners, so Pam could use her FMLA to care for Kate. I’m sure that must be very difficult for them.

FMLA is a step in the right direction to strengthen families, but we haven’t taken enough next steps. I understand it creates a burden for employers – but so does having employees struggling with these challenges while juggling work as does the cumulative effect of losing employees altogether when there is no option. And it takes a toll on society – a lack of care in the aftermath of an illness or injury can lead to higher medical expenses, impact education for the family’s children, create a need for public welfare programs, etc.

Fortunately, today is not a day that requires a trip home for Ledcat. I have access to ginger ale, soup, tissue and a comfy bed. I’m set. I’m grateful. And a little angry that I have to think about this stuff.

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