Who is a "Family Member?" Writing Regulations in a Confusing World

By on June 15, 2010 in Current Events with 1 Comment

Changes in American society can be confusing—perhaps even more confusing than a cynic might expect.

In this changing world, what is a federal supervisor to do when an employee requests leave? How do you know if you are even allowed to approve leave for an employee to attend a funeral, for example, or to allow the employee to take sick leave?

Who qualifies as a family member so that a federal employee is entitled to take leave? For the federal supervisor, your job may be about to get harder when you are called upon to make this decision.

Those of us who work for or around the federal government are familiar with the barrage of news articles using the relatively recent term "domestic partner." The term can apply to two people living together in a romantic relationship who may be both male, both female or one male and one female. Often, the term is used to refer to gay couples as the two people are not married.

But, in other cases, the term "domestic partner" includes both gay couples or two people of the opposite sex.

Here is an example. A new regulation published in the Federal Register modified the definition of a family member "for purposes of use of sick leave, funeral leave, voluntary leave transfer, voluntary leave bank, and emergency leave transfer."

The Office of Personnel Management (OPM) writes that "The purpose of modifying the current family member and immediate relative definitions is to promote consistency across agencies as we implement Section 1 of the President’s June 17, 2009, Memorandum on Federal Benefits and Non-Discrimination across the Federal Government in the administration of Federal leave benefits."

No doubt, OPM has a hard job in this arena of trying to resolve the rapidly changing concept of what constitutes a "family member." In fact, any decision that the agency makes will result in criticism and upsetting some segment of the population. While some will shrug with a comment along the lines of "whatever," there are some large amounts of taxpayer dollars involved as the way in which OPM interprets and applies its regulations can create expensive benefits for more people.

If a new regulation only applies to gay couples that are not married, heterosexual couples that are not married will be unhappy. Including gay couples in a definition that allows payment of federal employee benefits will result in criticism from those who think the benefits should only go to married couples with a male and female partner. A definition of a regulation that gives federal employee benefits to any couple, regardless of the gender of the people involved, expands the payment of federal money and denigrates the institution of marriage.

Here is what OPM is doing with its newest regulation.

Beginning July 14th, employees of the federal government may use sick leave or funeral leave in cases of ailing or deceased domestic partners. And, unlike some other recent changes to federal human resources policies on which we have advised readers that apply only to same-sex partners, the new orders also apply to opposite-sex domestic partners.

All this confusion may ensure job security for lawyers employed by the federal government as the bureaucracy attempts to delineate who qualifies to receive federal employee benefits. For example, the term "married couple" may have been sufficient in previous eras. Now, however, OPM is trying to define a broader concept and came up with this definition:

Committed relationship means one in which the employee, and the domestic partner of the employee, are each other’s sole domestic partner (and are not married to or domestic partners with anyone else); and share responsibility for a significant measure of each other’s common welfare and financial obligations. This includes, but is not limited to, any relationship between two individuals of the same or opposite sex that is granted legal recognition by a State or by the District of Columbia as a marriage or analogous relationship (including, but not limited to, a civil union). Domestic partner means an adult in a committed relationship with another adult, including both same-sex and opposite-sex relationships.

Whether this proves sufficient remains to be seen but there is no doubt the regulations are getting longer.

So, with this issue resolved, what is a family member? Here is a list of relationships that may permit a federal worker to take leave under the required circumstances:

(1) Spouse, and parents thereof;

(2) Sons and daughters, and spouses thereof;

(3) Parents, and spouses thereof; (4) Brothers and sisters, and spouses thereof;

(5) Grandparents and grandchildren, and spouses thereof;

(6) Domestic partner and parents thereof, including domestic partners of any individual in paragraphs (2) through (5) of this definition; and

(7) Any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.

While this definition may sound inclusive, OPM can reasonably anticipate that it has not really covered all possible relationships. So, to make sure, it added a caveat.

The fact that a specific relationship is not expressly included in these definitions is not meant to diminish the familial bond, or to imply that leave may not be used to care for a person with that relationship.

But, if that is confusion, perhaps this will clear it all up:

Although we agree that any of the suggested relationships may be considered a close association with the employee that is equivalent to a family relationship, not every employee’s relationship will have this close association. For example, some employees may have been raised by an aunt, while others may have never had the opportunity to meet their aunt.

Are there any limits?

Yes, there are. And, in this instance at least, the rules are clear.

Some of us are dog lovers, others have a close relationship with other animals such as a cat. But, when your pet passes on, you will not get paid leave.

We received a comment about employees who wish to use sick leave to care for an ill pet. While we agree that a person may have a close bond with his or her pet, an employee cannot use sick leave, or donated leave under the leave transfer programs, for this purpose. An employee must use his or her annual leave or leave without pay for this purpose. Therefore, no change is being made.

So, if you are a federal supervisor, will you know when to approve a leave request from an employee?

Many supervisors will not have a clue and automatically approve just about any request. Others will probably deny many requests out of frustration. Others will try to find someone in their servicing human resources office to see if they know the answer.

For others, they will probably decline a promotion to remain an employee and not become a supervisor because the extra money is not worth the inevitable headaches that accompany the job.

 

© 2016 Ralph R. Smith. All rights reserved. This article may not be reproduced without express written consent from Ralph R. Smith.

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About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters onĀ federal human resources.

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