Illinois Bar Journal

May 2012Volume 100Number 5Page 234

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Illinois FMLA would cover civil unions

An Illinois legislative proposal would give members of a civil union the same benefits enjoyed by married couples under the federal Family and Medical Leave Act.

In 2011, Illinois lawmakers enacted the Religious Freedom Protection and Civil Union Act, which gave same-sex couples the right to enter into civil unions. Now a pending bill could bring those couples the same protections and benefits enjoyed by heterosexual married couples under the federal Family and Medical Leave Act.

"This is like house cleaning"

State Rep Kelly Cassidy of Chicago, an openly gay Democrat in the 14th District, is the chief sponsor of a bill that would create the Illinois Family and Medical Leave Act, which she said would serve the sole purpose of extending the federal FMLA benefits to same-sex couples in civil unions.

"We quite intentionally paralleled the federal law so it would be very clear we are not trying to create any new benefits," Cassidy said of the proposed legislation. "It is purely because there is this uncovered category of families that deserve the same benefits."

Cassidy said this new bill is a necessary addition to the Religious Freedom Protection and Civil Union Act, and extending the federal benefits to gay and lesbian families in Illinois is merely "doing what we promised to do" when the civil-union act became law last year. She said proponents of the civil-union act always intended for same-sex families to be able to enjoy the same benefits and responsibilities available to heterosexuals.

"This is like house cleaning," Cassidy said. "When we passed civil unions, this was an unexpected consequence and we need to fix it."

According to Cassidy, 10 other states have state-specific family and medical leave acts, most of which provide equal protection to gay and straight couples. Some states, like Iowa, provide such equal protections even without a state-specific FMLA, Cassidy added.

"As we work towards full equality, ideally the best possible outcome would be universal marriage equality all across the county," Cassidy said. "Until that happens, we need to make sure we apply the laws equally in Illinois, and that we make sure to give the benefits to those we believe deserve them."

Anderson & Boback attorney Kimberly J. Anderson, who chairs the ISBA Family Law Section, said her section members are mostly in favor of Cassidy's proposed law, having closely monitored and staunchly supported the progress of the civil-union act last year.

"Our committee has always been supportive of any kind of law…that would incorporate the gay and lesbian couples to be given equal rights," Anderson said. "We have our own subcommittee on this particular issue and we've been following it over the years looking for ways to get people on board."

Anderson said some of her section members have already presented this equal-protection argument to the courts in cases involving family matters for gays and lesbians. Section members have also handled cases in juvenile courts in which arguments were made for providing equal protections to the children of gay and lesbian couples.

When the civil-union act was passed, Anderson said that it failed to expressly modify every last statute in Illinois that might be affected by same-sex couples entering into civil unions, but she believes it has always been the legislature's intent that equal protection be granted to gay and lesbian families.

"They didn't go and amend every single statute, but they said every obligation and every benefit any other person gets in Illinois who is married is supposed to extend to people in a civil union," Anderson said. "We believe every right and every obligation should be available to all families."

No double-dipping

Cassidy said her bill has successfully passed through committee review, but some revisions must be made to address concerns that enacting an Illinois FMLA could allow some people to obtain double protections by applying for benefits from both the state and federal laws.

Cassidy said the federal FMLA provides married families with up to six weeks of unpaid leave for illness or upon the birth or adoption of a child. Some people have raised concerns that a heterosexual family could claim six weeks under the federal law and another six weeks under the state law, but Cassidy said that is not possible because both laws would "start the clock" for the six weeks of leave upon the contraction of the illness or the birth or adoption of the child.

"There is some concern about double-dipping … but because of the way FMLA is designed, it's based on the timing of the event and you can't get 12 weeks - you get six," Cassidy said. "We're still working on addressing those concerns about double-dips, so we're working on that with the various business and legal groups to make sure everyone's concerns are addressed."

Beyond those concerns, Cassidy said the bill is obtaining strong support from other legislators and from the business community.

"It's been really wonderful in committee to see all the support," Cassidy said. "The Chicagoland Chamber [of Commerce] came to me and said, 'we are very intentionally not weighing in against this, we're not concerned about this, we understand what you're trying to do, and it's the right thing to do.'"

Adam W. Lasker <> is a Chicago-based lawyer and writer.

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