The Washington Post

New proposal would make same-sex partners eligible under Family and Medical Leave Act

The Labor Department issued a proposed rule Friday stating that any employee is eligible for leave to care for a same-sex spouse under the Family and Medical Leave Act regardless of whether they live in a state that recognizes their marital status.

“The basic promise of the FMLA is that no one should have to choose between succeeding at work and being a loving family caregiver,” said Labor Secretary Thomas E. Perez. “Under the proposed revisions, the FMLA will be applied to all families equally, enabling individuals in same-sex marriages to fully exercise their rights and fulfill their responsibilities to their families.”

Administration officials did not specify how many individuals would be affected by the proposed rule. But given the large number of Americans who regularly take advantage of the federal benefit, it could have an impact on thousands of families.

Due to FMLA’s scope, the Labor Department rule would apply only to private-sector employees. The Office of Personal Management issued its own proposal Friday extending the same benefits to federal employees.

The proposed rule is the latest effort by the Obama administration to extend federal benefits to same-sex couples since last year’s Supreme Court decision striking down the 1996 Defense of Marriage Act. The ruling in that case, Windsor v. the United States , found that gay couples married in states where it is legal must receive the same federal health, tax, Social Security and other benefits that heterosexual couples receive.

Later Friday, the Justice Department will issue the findings of its year-long review of how the Windsor decision affects other federal benefits. In almost all instances, same-sex married couples will receive the same federal benefits and obligations as their heterosexual counterparts, regardless of where they live. For example, the Defense Department now offers the same benefits to same-sex and heterosexual couples, and the Health and Human Services Department has published guidance dictating that any insurance companies providing spousal coverage must make the same plan available to same-sex spouses.

The two exceptions are Social Security and veterans benefits, which are determined based on the law where individuals live, as opposed to where they celebrated their marriage. Several gay and civil rights groups, including the Human Rights Campaign and the American Civil Liberties Union, have been pressing lawmakers to extend those federal benefits to same-sex couples.

Human Rights Campaign spokesman Fred Sainz called the administration’s application of the Windsor decision to federal policy is “easily the largest conferral of rights, benefits and obligations to gay and lesbian Americans in our nation’s history.”

On Friday, the administration will call on Congress to pass a handful of bills — sponsored by Democrats — aimed at extending those benefits to same-sex couples in states that don’t recognize gay marriage. It comes just four days after the White House said the president will sign an executive order barring discrimination on the basis of sexual orientation and gender identity.

James Esseks, who directs the ACLU’s Lesbian Gay Bisexual and Transgender Project, said Congress needs to pass legislation so that “LGBT Americans who have been paying into the [Social Security] system for decades” can take advantage of it.

“We look forward to working with the administration and Congress to fight for full equality and recognition for all couples and turn the final page on DOMA’s ugly, discriminatory chapter in our history,” Esseks said in a statement.

Juliet Eilperin is The Washington Post's White House bureau chief, covering domestic and foreign policy as well as the culture of 1600 Pennsylvania Avenue. She is the author of two books—one on sharks, and another on Congress, not to be confused with each other—and has worked for the Post since 1998.

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