Just a quick digression here–I know I have comments to respond to, a thought in progress, and I’m getting ready for summer travel. But I wanted to note this story: The Obama administration is about to issue new rules defining who gets time off under the Family and Medical Leave Act. It will extend new protections to lesbian and gay families.
The 1993 law allows people to take time off to care for an ill daughter or son. The question left a bit up in the air is when is a person a daughter/son? The process around this change is a bit complicated so for the moment I’m going to quote from the NY Times:
Under the law, “the term ‘son or daughter’ means a biological, adopted or foster child, a stepchild, a legal ward or a child of a person standing in loco parentis.” The law does not define “in loco parentis.” But the relevant federal regulations say, “Persons who are ‘in loco parentis’ include those with day-to-day responsibilities to care for and financially support a child.”
Moreover, the rules say, “A biological or legal relationship is not necessary.”
The administration cannot change the law without action of Congress, of course, and it cannot make rules without a rule-making process. So I think neither of these is happening. The Department of Labor’s Wage and Hour Division is issuing a ruling on the application of existing laws and regulations. The ruling apparently states that a same-sex partner can qualify even if she or he has not adopted the child in question.
I’m sure employers will object to this on the grounds of added expense, but surely this expansion of the universe of protected people makes sense. The original law did not require a legal parental relationship–step-parents were allowed to take time off. Legal parenthood isn’t what is at issue here.
The critical criteria here is perhaps the in loco parentis one–who are the people around the child who act like parents? A legal parent who does not tend the child is unlikely to need or want time to take care of the child if they child is sick. But the person who acts like a parent will want and need that time. In the same way, the child needs the person who acts like a parent, not the person with the legal rights.
In a perfect world perhaps there would be complete correspondence between who cares for the child (and I do not mean the babysitter) and who has legal rights. But for ever so many reasons, there will never be that correspondence. And so the law–particularly the law in situations like this–must respond to the reality.
That’s all I’ve time to say right now.