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LGBTQ Employees and PFL: Children, Chosen Families and Challenges

Wondering how family leave policies can impact LGBTQ employees and their families? Read about the challenges they may face as they care for their loved ones.

Paid family leave provides relief when people need time away from work to care for loved ones. But for LGBTQ families, many factors can keep them from enjoying these benefits. Even when the need for taking a leave is great.

The federal Family and Medical Leave Act allows eligible employees to take unpaid, job-protected leave for certain family and medical reasons. The original act, passed in 1993, didn’t include LGBTQ employees because federal law didn’t recognize same-sex relationships. Changes in 2015 gave spouses in legal same-sex marriages the same rights as all spouses.

Some public and private employers in certain cities and states have stronger policies that include paid family leave. But still, LGBTQ employees don’t always qualify.

Let’s look at how family leave policies affect LGBTQ people’s ability to take care of their children, other adults and themselves.

Taking Care of Children

Same-sex couples are four times more likely than different-sex couples to be raising an adopted child, according to the Williams Institute. They’re six times more likely to be raising foster children.1

The FMLA allows parents to take unpaid leave to care for a child under 18, including the child of a person standing in loco parentis. This would apply to an LGBTQ parent raising a child who has no biological or legal ties with that parent. People are eligible for FMLA leave when they’ve worked 1,250 hours in the 12 months before the leave.

But only 12 percent of private-sector workers get paid family leave through their employers, according to the Department of Labor. And if PFL is available, it may apply only to biological or legal parents. Not all of these companies offer paid paternity leave or benefits for adoptive parents.

Here’s how state family leave laws can influence an LGBTQ person’s ability to take leave to care for a child:2

  • Nine states and Washington, D.C., allow workers to take a leave to care for a child they’re parenting, even if they lack a legal or biological relationship to the child.
  • Seven states allow workers to take a leave to care for a child only if they have a legal or biological relationship to the child.
  • Thirty-four states lack bonding leave laws beyond what the FMLA provides.

Only five states and Washington, D.C.3, offer paid leave for reasons including bonding with a child.

When policies work against LGBTQ parents, families struggle with taking time away from work — without pay — to bond with new family members. When there’s also a lack of support from biological family members during an adoption, there may be an even greater need for family leave.

Another challenge is concern about having to disclose their LGBTQ identities in leave requests. This keeps some parents from asking for leave even when it’s available.

Taking Care of Other Adults

It’s common for spouses and adult children to take on the role of an informal caregiver to an older adult.

LGBTQ people often depend on “chosen families” — sometimes in addition to their blood relatives — for support and care. Chosen families develop because of potential or actual rejection by their own families. Nearly two-thirds of LGBTQ older adults say they consider their friends to be chosen family, according to the Family Caregiver Alliance.4

But not all leave policies include chosen families. This means many caregivers don’t have the option to take time off from work.

There has been some progress, however. In February, the governor of New Jersey signed a bill that expands the state’s paid family leave law to include chosen families. It includes “any other individual that the employee shows to have a close association with the employee which is the equivalent of a family relationship.”

Taking Care of Themselves

The FMLA allows eligible employees to take a leave for a “serious health condition.” A question for many LGBTQ people is whether treatments for gender dysphoria or medically supervised gender transition qualify.

From 2015 to 2016, the number of transgender-related surgeries rose nearly 20 percent, according to the American society of Plastic Surgeons.5 Some government agencies, however, say such treatments are not medically necessary.

The Department of Labor, which enforces the FMLA, hasn’t discussed the issue. Regardless, taking an unpaid leave might be a luxury for many transgender workers. It’s unclear how paid family leave plans will view gender transition treatments.

Understanding and Support

If you’re thinking about adding paid family leave to your organization’s benefits or managing a state-required policy, stay informed about the impact to LGBTQ employees and their families. Understanding their challenges can help ensure that your benefits are inclusive and that employees feel supported.

What’s more, offering paid family leave benefits can help your business by attracting and retaining top talent at your organization.

Watch This Space

The Standard is committed to partnering with employers across the country. We're here to help you anticipate and understand ever-evolving paid family leave regulations.

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