In the year that has passed since Governor Andrew Cuomo signed into law the New York Marriage Equality Act, thousands of same-sex couples have vowed to take each other "in sickness and in health." Yet because of discriminatory and inadequate federal laws that deny LGBT spouses the protections guaranteed to their heterosexual counterparts, many LGBT couples are experiencing setbacks as they strive to honor their marriage vows. While we wait for the federal government to catch up with history and stop discriminating against LGBT families, Governor Cuomo and the New York Legislature can provide critical protection to all families by passing the Family Leave Insurance Act.
When a same-sex partner or spouse is seriously ill, LGBT New Yorkers have no legal right to paid or unpaid time off to provide necessary care. The Family and Medical Leave Act (FMLA) is the only federal law in the United States that provides unpaid leave to workers who need time off to care for a seriously ill family member, recover from a serious health condition, or bond with a new child. But many people don’t realize that the FMLA is limited by the discriminatory Defense of Marriage Act (DOMA), which prohibits federal recognition of same-sex marriages. Although same-sex marriage is legal in New York, DOMA means that LGBT New Yorkers cannot take FMLA leave to care for a seriously ill same-sex spouse or partner.
Even if the FMLA were to recognize same-sex relationships, it is important to note that the law itself has significant shortcomings. Because FMLA leave is unpaid, many workers covered by the law cannot afford to take time off. Moreover, due to the law’s eligibility requirements, the FMLA does not cover approximately half of all American workers. In times of family need or crisis, it is unacceptable for so many workers to be consumed with concerns of job security and financial survival. To fully support LGBT families who are struggling to balance work and family responsibilities, we must go further.
As LGBT New Yorkers marry and raise children in greater numbers, there is a clear need for laws that allow LGBT workers to care for new children and seriously ill loved ones. Census data indicate that New Yorkers in same-sex relationships have high rates of labor force participation, which only increases the importance of LGBT-inclusive workplace laws; in 2008, it was reported that 77% of New Yorkers in same-sex relationships were employed, compared to 63% of married, different-sex New Yorkers. Furthermore, same-sex couples in New York who are raising children have household incomes that are 27% lower on average than those of married, different-sex parents. With lower household incomes, LGBT families are less likely to be able to afford unpaid time off from work.
Governor Cuomo and the New York Legislature can make it easier for LGBT New Yorkers to care for their families by supporting the Family Leave Insurance Act. Under this LGBT-inclusive bill, which would extend New York’s existing Temporary Disability Insurance (TDI) program, workers would be able to take up to 12 weeks of paid leave to care for a newborn or newly adopted child, or to care for a seriously ill family member. Family leave insurance would not require contributions from either business or government; instead, the weekly benefits would be funded entirely by small employee paycheck contributions. Since being introduced in both the New York State Senate and State Assembly, the Family Leave Insurance Act has garnered bipartisan support.
Family leave insurance is a low-cost, business-friendly way to assist working families in New York. California and New Jersey have implemented similar family leave insurance programs with notable success. In both of these states, research has shown that paid family leave creates business savings through reduced turnover costs, improved productivity, and enhanced worker morale and loyalty. By keeping workers attached to their jobs after a child is born or when a loved one is seriously ill, the Family Leave Insurance Act would also be a “job-saving” bill. The law would particularly benefit LGBT workers by allowing them to take paid time off to care for a seriously ill same-sex spouse.
Although the first anniversary of marriage equality in New York provides an opportunity to reflect on the State’s progress on LGBT rights, it is also a time to recognize that more needs to be done to ensure that LGBT families are fully protected under the law. Governor Cuomo was a champion of marriage equality, and his leadership on the issue advanced the rights of LGBT New Yorkers. But LGBT workers, who too often labor without a health and financial safety net, remain incredibly vulnerable in times of family need. LGBT New Yorkers must call on the Governor to build on his marriage equality victory and expand protections for LGBT families through the Family Leave Insurance Act. It is time that our laws enable LGBT New Yorkers to care for new children and seriously ill loved ones without risking their economic security.
For more information on the Family Leave Insurance Act and the FMLA’s effect on LGBT families, please visit www.abetterbalance.org.
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