Domestic Partners and the FMLA

As everyone knows, the FMLA gives employees 12 weeks of unpaid leave for a for the birth, care, or adoption of a child, to take care of a spouse, child, or parent with a serious health condition, or to take of her own serious health condition.  One recurring question that has come up is what is a "child" for purposes of getting leave under the FMLA. 

When the FMLA was enacted, Congress was aware that there are many non-traditional families, and many children who are cared for by someone other than a biological parent.  By some estimates, more than 6.5 million children being raised by grandparents or other relatives.  Congress therefore adopted a broad definition of child under the act to include a “foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis."  I love the term "loco parentis." which means someone who has put himself in the shoes of a parent by by assuming the obligations of parenthood without formally and legally becoming a parent.  I love the term because in Spanish "loco" means "crazy," which descripes sometimes what it is like being a parent. 

In a recent interprative letter from the Department of Labor, the Secretary of Labor clarified that the term in loco parentis is to be read broadly, taking into account the reality that, in essence, it takes a village to raise a child.  DOL Interpretive Letter The letter clarifies that in order to be considered a parent, one has to have either day-to-day responsibilities over the child, or provide financial support, but not both.  So, for example, if a couple divorces and both spouses remarry, both parents and both step-parents would be entitled to leave.

What commentators and the blogosphere have focused on in the letter is its explicit statement that same-sex partners raising a child together are both entitled to FMLA leave to adopt the child or care for him if the child has a serious health condition. 

While to me it is obvious that a same-sex partner would stand in loco parentis with regard to a child both partners are raising, some have attacked the letter as "advancing the homosexual agenda."  The Baptist Press quotes one Tony Perkins as saying the letter is an unconstitutional attack by the Obama administration on .... well, something.

I can't figure out why someone would be opposed to giving leave to someone to take care of a child, regardless of the orientation of the couple raising the child.  Shouldn't we be encouraging more child-centric policies?  FMLA leave is still unpaid, so it's a hardship for many people to take leave.

This interpretative letter is a start as far as extending benefits under the FMLA goes, yet the law does not go far enough.  As written, a domestic partner can take care of the child the partners are rearing together -- but can't take care of the partner.  That's because the FMLA gives the right to take unpaid leave to take care of a child, spouse or parent.  This means that the millions of same-sex couples who are legally prohibited from becoming spouses are also prohibited from taking FMLA leave to take care of their partner if he or she becomes sick.  It's hard to see why a domestic partner should get to take care of his child, but not the partner with whom he is raising that child.