Did You Know? Same-Sex Parents Can Take FMLA Leave Even If Not Legal Parent

Today is the 20th anniversary of the Family and Medical Leave Act (FMLA), so it’s the perfect time to remind folks that FMLA allows people to take time off to care for a child (biological or adoptive) who is legally the child of a same-sex partner—that is, even if you are not on the child’s birth certificate or haven’t done a second-parent adoption. Here’s the story of two lesbian moms who did so, despite having to be extra prepared to explain matters to their employer.

This story comes courtesy of Emily Hecht-McGowan, Director of Public Policy at the Family Equality Council:

Gina Patterson and her wife Pauline were one of the first same-sex couples married in New York — and at the time Pauline was three months pregnant with their daughter Lily. Full of hope for their life together and excited to be welcoming a daughter into their lives, Gina and Pauline were grateful to be happy, healthy, and legally recognized as a family.

When Lily was finally born, Pauline, as Lily’s biological mother, was able to take 12 weeks of paid leave to care for Lily — much like mothers across the country do every day.

But as many new parents know, those 12 weeks go by quickly. Lily wasn’t nearly ready for daycare, and as two working moms — Gina works for the New York state court system and Pauline is a music publisher — they were facing difficult decisions just as all new parents must.

Knowing that she hadn’t yet had the chance to spend time watching their baby grow and develop and caring for her, and since Gina, a lawyer, knew her options under the expanded FMLA coverage, she applied to take federal unpaid child care leave to care for Lily.

Unlike most opposite-sex couples, who have less trouble accessing these programs and services, Gina was asked for a note from Lily’s pediatrician saying that she should be able to take time off to care for her daughter.  The FMLA expansion that our community secured in 2010 ensured that Lily never lacked the love and nurturing of both her parents could provide.

Because of Gina’s background in the law she was prepared for the amount of advocacy she would need to do on her own behalf to access this coverage — and Lily benefited from Gina’s knowledge and experience.

This is a common experience for many LGBT parents, whether at the doctor’s office or at their child’s school, but not all families are as informed about the law or as prepared to take on this added burden of explaining to schools, doctors, and employers about the vagaries of the legal ties many of us have to our children.

Fortunately, Gina’s workplace was a welcoming one and once the HR department confirmed that Gina was eligible as a parent standing in loco parentis to take leave to care for Lily, and she was able to get the time off she needed.

While Gina, Pauline, & Lily’s story has a happy ending, and baby Lily was never denied having loving mothers when she needed them most, many families have been denied this vital protection.

Hecht-McGowan notes, however, that same-sex partners “are not currently covered under FMLA, in part because of the Defense of Marriage Act (DOMA).” DOMA repeal could still be a while, though, so Family Equality supports the Family and Medical Leave Inclusion Act, which would expand FMLA to include same-sex spouses/partners. They also support the Healthy Families Act, which would provide paid sick leave for all workers and expand the number of workers who meet eligibility requirements. Both bills have been introduced previously, and are expected to be reintroduced this session.

The United States is sadly behind in family-friendly policies—policies that promote economic security for families and better care for our children. As with immigration reform, we need to make sure LGBT families are included as we work with allies (like MomsRising) to ensure broad changes that will benefit families of all types.