In the past five years, more than 35 local and state paid sick time laws have been passed in the United States, guaranteeing workers a minimum amount of paid sick time for personal and family health needs. Four states have passed paid family and medical leave programs that provide extended paid time off to bond with a new child or recover from, or care for a loved one with, a serious health condition.

As momentum for paid sick time and paid family and medical leave laws continues to build, there has been a growing effort for these laws to define “family” in ways that are realistic and inclusive. Our analysis shows that state and local victories in the last half of 2016 will provide nearly 7 million people access to paid sick time with an inclusive family definition.¹ The government uses the construct of family to make determinations about access to rights, resources, and benefits. Inconsistent and often restrictive family definitions have marginalized a host of different types of families, including but not limited to extended, single-parent, and blended families; families headed by same-sex couples; and chosen families, which are characterized by mutually supportive structures outside of blood or legal relationships. These restrictive family definitions often reinforce structural inequities—including those based on race, gender, sexual orientation, citizenship, age, and ability—and disproportionately affect individuals and families living at the intersections of these identities.

Historically, family definitions in law and policy have often failed to meet the needs of families in the United States, and they frequently fall short today. The overwhelming majority of households—more than 80 percent, according to the United States Census—depart from the so-called nuclear family model of a married couple and their minor children. In addition, 85 million people—disproportionately people of color—lived in extended families as of 2014, up from 58 million in 2001. People have a broad array of loved ones who are often central to their notions of family and their caregiving responsibilities.

In particular—although the lesbian, gay, bisexual, transgender, and queer, or LGBTQ, movement successfully achieved nationwide marriage equality in 2015—LGBTQ individuals and families continue to experience the collateral consequences of narrow family definitions in local, state, and federal policy and would gain significantly from more inclusive definitions of family in workplace leave policies. Many LGBTQ individuals forge close relationships with friends and informal support networks—known as chosen families—especially since LGBTQ people too often face extreme stigma within their biological families and communities. These relationships become paramount when needing to take time off from work to recover from illness or care for sick loved ones.

While there are a range of policy areas where improved definitions of family would more appropriately capture the diverse realities and needs of many families, this report focuses specifically on the importance of inclusive definitions in workplace leave policies, especially for LGBTQ families. A growing number of jurisdictions have passed and implemented paid leave policies that are accessible to a wider range of family types. To ensure these benefits are not restricted by one’s ZIP code, this report recommends that all levels of government should:

• Enact paid leave laws and policies that cover extended relatives and chosen family
• Pass comprehensive nondiscrimination protections that protect people on the basis of sexual orientation and gender identity
• Improve data collection and research on chosen families and LGBTQ communities

These policies are critical steps necessary to ensure that all families get the support they need to balance work and family and to thrive in all aspects of their lives.

Policymakers explicitly and implicitly define the construct of family through public policy and political discourse on a range of issues and at all levels of government. Such definitions intentionally or unintentionally restrict or expand access to rights, resources, and recognition for families and individuals.³

Throughout history, definitions of family have reflected both cultural and political circumstances. Between 1911 and 1919, nearly 40 states created pension programs to support orphaned and fatherless children—but in many cases unmarried mothers and women who worked outside the home did not qualify.⁴ During the 1930s, policies spearheaded by President Franklin Roosevelt were frequently based on the idea that working families deserved government support in the face of the economic devastation of the Great Depression and that state programs supporting the poor should be supported with federal money as states faced bankruptcy.⁵ Yet many poor families and families of color did not benefit from the New Deal, particularly from programs that allowed states to continue to set eligibility criteria.

One example from the New Deal is the federal Aid to Dependent Children, or ADC, program, later renamed Aid to Families with Dependent Children, or AFDC. The ADC—which was enacted to replace state programs referred to as “mothers’ pensions” programs—provided states with federal matching funds in order to provide cash assistance to mothers who lost husbands due to death or desertion, so that they could focus on housekeeping and childrearing.⁶ However, in distributing that cash assistance, states often used subjective criteria that enabled them to discriminate on the basis of race and exclude mothers based on assessment of moral character—a standard that often resulted in denial of assistance to women who had borne children outside of marriage.⁷ The criteria for the program shifted over time, but the AFDC was repealed and replaced in 1996 with the Temporary Assistance to Needy Families, or TANF, program, which rewarded married different-sex couples and stigmatized families who did not mirror that supposed ideal. In fact, one purpose explicitly articulated in the act establishing TANF was to “encourage the formation and maintenance of two-parent families.”⁸

Also in 1996, Congress enacted the Defense of Marriage Act, or DOMA, which explicitly defined marriage as the union of one man and one woman for the purposes of the federal government. This law excluded same-sex partners from the numerous rights and benefits of civil marriage at the federal level until the Supreme Court ruled DOMA unconstitutional in 2013. Later, in 2015, the Supreme Court’s Obergefell v. Hodges ruling established marriage equality nationwide. However, many LGBTQ families continue to be excluded from narrow family definitions in local, state, and federal policy.

This is not to say that all government actions have restricted family definitions. For example, federal regulations were issued in 1969, during the Vietnam War, allowing federal employees to take funeral leave for the combat-related death of immediate relatives, including anyone they were related to by “blood or affinity whose close association with the employee is the equivalent of a family relationship”; this family definition was later expanded to other benefit programs for federal workers, including paid sick time.⁹ But far too many policies, ranging from immigration laws to workplace leave, currently rely on definitions that favor particular families.¹⁰ As currently constructed, such policies often reflect society’s existing biases—such as those based on race, gender, sexual orientation, citizenship, age, and ability—and particularly harm those living at the intersections of these identities.

The need for inclusive family definitions is generated from two realities. First, kinship networks outside of the nuclear family have always been part of the U.S. social fabric—both as a cultural norm within certain communities and as an economic means of survival for low-income people.¹¹ Second, it reflects a larger shift in cultural, economic, and social norms. According to the United States Census, more than 80 percent of households today depart from the nuclear family model of a married couple and their minor children, compared with 57 percent in 1950.¹² These so-called non-nuclear family households include families such as those with children older than age 18, families not headed by married couples, and households occupied by one individual or a group of individuals unrelated by blood, marriage, or adoption.¹³

Changes in family structures are shaped by a variety of social trends. People in the United States are generally waiting longer to marry or opting not to marry at higher rates than in past decades.¹⁴ A growing number of people are living with a partner to whom they are not legally married and raising children outside of marriage; the prevalence of these relationships shows the importance of covering unmarried partners and broadly defining “child” in workplace leave policies.¹⁵ Many others who do not have a spouse or partner have structured their families and lives in ways that depart from the nuclear family model. In addition, 85 million people were living in extended families in 2014—up from 58 million in 2001.¹⁶ Extended families, which include families such as those who have taken in a grandparent or have adult children living at home, are disproportionately people of color.¹⁷ Thus, workers’ relationships with grandparents, grandchildren, and other cross-generational relatives are often central to their notions of family and their caregiving responsibilities. And caregiving extends to those outside the households as well, with many people also providing care to biological relatives or nonbiological chosen family outside their home.¹⁸ These relationships should be recognized in workplace leave laws and policies.

An inclusive definition of family in workplace leave policies would benefit many different types of families, but is particularly important for LGBTQ families. As most government surveys and administrative datasets do not collect data about sexual orientation and gender identity, it is difficult to assess the family and household structures and support networks of LGBTQ individuals in the same way other families are analyzed. However, academic studies suggest that many LGBTQ individuals forge close relationships with chosen families, especially due to stigma within their biological families and communities.¹⁹ There may be differential positive benefits for specific subgroups within the LGBTQ community as well. One study showed that gay and bisexual men rely heavily on other members of the LGB community for certain forms of social support, even more so than lesbian and bisexual women.²⁰ Transgender people also frequently form close ties with networks unrelated to their biological or families of origin.²¹

These chosen families can develop at an early age, sometimes out of necessity. For example, an estimated one-third of LGBTQ youth in foster care report having been abused by family members because of their sexual orientation or gender identity.²² Thirty-seven percent of LGBTQ youth in juvenile justice settings report having been homeless because of family rejection, compared with 17 percent of heterosexual and gender-conforming youth.²³ Family conflict is one of the most common reasons for all youth homelessness, and LGBTQ youth appear to be disproportionately represented among youth experiencing homelessness.²⁴ Youth of color are overrepresented within this group—though this overrepresentation may be due to economic conditions and other structural inequities facing families rather than increased levels of family rejection in communities of color. A 2014 survey of human service providers serving the youth homeless population found that nearly half of their LGBTQ clients identified as nonwhite, a rate greater than for the population as a whole: 31 percent identified as African American or black, 14 percent as Latino/Hispanic, 1 percent as Native American, and 1 percent as Asian or Pacific Islander.²⁵

Research shows that LGBTQ older adults, who are significantly more likely to be childless and living without a partner than non-LGBTQ older adults, also develop and maintain strong relationships with chosen family.²⁶ One survey of LGBTQ baby boomers, who are age 45 to 64, found that these individuals are nearly twice as likely as non-LGBTQ-identified baby boomers to live alone—33 percent versus 18 percent.²⁷ They are less than half as likely as the general population to say they would rely on an adult child caregiver—16 percent versus 7 percent—and are less likely to expect a spouse or partner to care for them—47 percent versus 39 percent.²⁸ Thus, LGBTQ older adults may be less likely to have family support when they need care and often rely on families of choice, or support networks that are comprised of close relationships that are the equivalent of family. Sixty-four percent of LGBTQ baby boomers said that they have a “chosen family,” defined in the survey as “a group of people to whom you are emotionally close and consider ‘family’ even though you are not biologically or legally related.”²⁹ Forty-two percent of LGBTQ baby boomers said that they would depend on close friends in an emergency, compared to 25 percent of the general population.³⁰

While more data are needed, existing research underscores that LGBTQ workers generally have a heightened need for inclusive leave policies that account for the chosen family members they are likely to rely on for care and support. Of course, LGBTQ individuals are not the only ones for whom it is essential that we adopt inclusive family definitions in paid leave policies—their chosen family members, many of whom are non-LGBTQ, also need paid leave with realistic family definitions in order to balance their work and caregiving responsibilities.

The country’s social fabric includes a variety of family formations—blended families with step-relatives, single-parent families, multigenerational families, LGBTQ families, and others—that our workplace laws and policies often do not account for. Many people, both LGBTQ and non-LGBTQ, live with or depend on family members beyond their parent, spouse, and biological children. In particular, people increasingly rely on chosen family for care and support in times of need and serious illness. As our families evolve, so too must our workplace laws and policies.

Despite recent gains made at the city, state, and federal level, workers commonly suffer from inadequate workplace leave laws and policies.³⁴ Thirty-six percent of workers in the U.S. private sector lack even a single paid sick day, with the lowest-wage earners even less likely to receive paid sick time.³⁵ While there is a dearth of data on LGBTQ individuals, data from the 2014 National Health Interview Survey suggest there are differences in access to paid sick time by sexual orientation—55 percent of lesbian and bisexual women report having access to paid sick time, compared to 60 percent of heterosexual women.³⁶ Only 13 percent of U.S. private sector workers receive paid family leave—extended time off to bond with a new child or care for a seriously ill family member—through their employers.³⁷ Moreover, workers of color are less likely than white workers to have access to any paid leave or workplace flexibility, with Latino/a workers least likely of any racial or ethnic group to have access to paid sick time or paid family leave.³⁸

Even workers who receive sick time or family leave often face limitations in their ability to use that time to care for loved ones—especially extended family and chosen family. The single federal law regulating private employers in this area, the Family and Medical Leave Act, or FMLA, excludes about 40 percent of workers in the United States and has significant shortcomings.³⁹ While the law allows eligible workers to take up to 12 weeks of job-protected time off to bond with a new child or care for a family member with a serious health condition, the FMLA does not require employers to provide paid time off, and defines “family” narrowly, limiting the term to include a child who is under 18 years of age or has a disability, a spouse, or a parent.⁴⁰ A number of states have passed unpaid leave laws that expanded upon the FMLA’s family definition by covering domestic partners, adult children, and/or additional relationships like grandparents, grandchildren, parents-in-law, and siblings.⁴¹

A lack of paid leave is enormously costly for workers and their loved ones—lack of access to paid family and medical leave costs workers $20.6 billion each year in lost wages.⁴² These staggering costs do not even incorporate reduced savings and retirement income, nor do they account for lower wage growth among workers who took time off to care for family.

Access to paid sick time matters not only for workers’ pocketbooks but also for their and their families’ health—as well as that of the public overall. The ability of a parent to care for an ill child improves the child’s health and reduces the spread of disease to other children.⁴³ Adults who work while they are ill are more likely to spread disease and delay medical care, harming their health and the health of those around them.⁴⁴

New parents benefit from taking sufficient paid family leave. Both biological parents and adoptive parents experience stress, sleep deprivation, and physical exhaustion when welcoming a new child. For new birth mothers, having less than 12 weeks of family leave is associated with increased symptoms of postpartum depression.⁴⁵ Adoptive parents also experience uniquely stressful events including infertility, financial issues, and evaluation for parental fitness.⁴⁶

Providing sufficient paid family leave for new parents also improves child health outcomes. Children whose mothers do not return to work full-time in the first 12 weeks are more likely to receive medical checkups and important vaccinations.⁴⁷ For foster children, the first few months are a critical adjustment period in the transition to a new placement, during which children need time to bond with their foster parents.⁴⁸ A longer period of leave will improve the mental health of new parents and facilitate attachment with an adopted child.

Paid leave is critical for the wellbeing of individuals, families, communities, and the economy. Putting adequate and inclusive policies in place is essential to ensure that people can meet their work and caregiving obligations.

LGBTQ people face a variety of unique challenges related to the marginalization of their sexual orientations and gender identities. These challenges—which include health disparities, elevated risk of violence, and employment insecurity—are due in part to insufficient supports and inadequate nondiscrimination protections. Inclusive paid leave is part of a suite of policy changes that would help address these difficulties.

Health disparities

Improving leave policies is particularly critical for LGBTQ communities, who experience well-documented health disparities as a result of many factors, including high uninsurance rates, lack of cultural competency among health care providers, and stress associated with stigma and discrimination.⁵⁰ A robust and growing body of research shows the negative impact of stigma on both the mental and physical health of LGBTQ communities, and discrimination b