"Domestic partner" update

Things don’t always happen this co-incidentially, but we need to update and, indeed, expand a bit, last Wednesday's posting about Ohio expanding its "immediate family” definition to include “domestic partners,” and some of the implications that could follow there.

The United States Department of Labor in a new administrative interpretation issued Tuesday has said “any employee who provides either day-to-day care or financial support to a child can qualify as a parent under the Family and Medical Leave Act, even if they have no biological or legal relationship with the child,” an interpretation which DOL is hailing as “"a victory for many non-traditional families," and which could make it easier for employees such as same-sex partners, grandparents, step-parents, aunts or uncles to take unpaid leave under the FMLA.

"No one who loves and nurtures a child day-in and day-out should be unable to care for that child when he or she falls ill," Labor Secretary Hilda L. Solis said in the Department’s press release. "No one who steps in to parent a child when that child's biological parents are absent or incapacitated should be denied leave by an employer because he or she is not the legal guardian. ... All families, including [lesbian, gay, bisexual and transgender] families, are protected by the FMLA."
"This is a critical step in ensuring that children have the support and care they need from the persons who have assumed parental responsibilities, such as an uncle who is caring for his young niece and nephew when their single parent has been called to active military duty or a grandmother who assumes responsibility for her sick grandchild when her own child is debilitated,” Nancy J. Leppink, deputy administrator of the Department's Wage and Hour Division said. "Nothing in the statute or regulations suggests that we should restrict the rights of various individuals who take on that very important role."
Some, however, are predicting the new interpretation will be challenged in court by groups representing small businesses and/or foes of gay marriage, Thompson Publishing reports. “The Department of Labor has said its new, more broadly applicable administrator interpretations will carry the same weight in legal disputes as the older, individualized opinion letters they are just this year replacing, but Burton J. Fishman, of counsel to Fortney & Scott, LLC, in Washington, D.C. and others, Thompson says, have questioned whether the courts will defer to the new interpretations, arguing they amount to an attempt by DOL to regulate without going through the formal regulatory process. The Family Research Council, too, in its press release Monday, argues the new interpretation conflicts with the Defense of Marriage Act.
So now we have attention being given on the national, federal, level, seemingly meshing… and with the same possible outcomes.
CNN last week quoted Christine Nelson, a program director at the National Council of State Legislatures, as saying that “while there could be a flurry of action by activists as a result of District Court Judge Vaughn Walker's decision in California’s ‘Proposition 8 trial’, which will determine the constitutionality of California's same-sex marriage ban , she doesn't expect anything substantial or noteworthy to come about it politically,” or at least not soon.
Two states – California & Massaschuests -- and the District of Columbia allow same-sex marriage, according to Stateline.org up to two years ago; four or five have civil unions or domestic partners, but for 30 of the states – including Ohio, Kentucky, and Indiana, Nelson said, “it will be next to impossible to get legislation on the table because those states have the Defense of Marriage Act on the books. Enacted by Congress in 1996, the act bars federal recognition of same-sex marriage and allows states the right to do so as well. Since 1996, several states have put into place legislation that prohibits same-sex marriages or "the recognition of same-sex marriages formed in another jurisdiction.”
Of Ohio’s Administrative Code amendment, yesterday, officials said the definition “was already part of contracts with state unions covering 69 percent of the state work force, and has been since 1986. They’re simply applying the same provision to nonunion workers.” Ohio State University law professor Marc Spindelman was quoted in the Columbus Dispatch as saying that “the benefits involved were limited and the proposed change not an attempt to make same-sex relationships the full equivalent of marriage - which is what the Ohio Supreme Court said in a 2007 ruling was required to conflict with the amendment.” (See State v. Carswell, 2007 Ohio 3723)