New Article: Chosen Family, Care, and the Workplace

New Article: Deborah A. Widiss, Chosen Family, Care, and the Workplace, forthcoming Yale L. J. Forum. Abstract below:

Fewer than twenty percent of American households consist of a traditional nuclear family—a married couple living together with their shared children. Couples routinely live together without marrying, blended and multigenerational families are increasingly common, and many adults, including a sizeable share of senior citizens, live alone. It is therefore not surprising that employees often request time off work to care for the medical needs of loved ones who are part of their extended or chosen family.

Until recently, most workers would not have had any legal right to take such leave. A rapidly growing number of state laws, however, not only guarantee paid time off for family health needs but also adopt innovative and expansive definitions of eligible family. Several provide leave to care for intimate partners without requiring legal formalization of the relationship and they also explicitly cover a broad range of extended family. Some go further to include any individual who has a relationship with the employee that is “like” or “equivalent to” a family relationship. Still others employ a functional approach that simply asks whether a sick individual depends on the employee for care.

This Essay provides the first detailed analysis of inclusive definitions of family enacted in state paid leave laws, as well as similar language in proposed federal legislation. It argues that providing workers the autonomy to define their own concept of family is essential, given varied makeup of modern families. A flexible standard is especially important for people of color and the LGBTQ+ community, whose care networks are particularly likely to extend beyond the boundaries of the nuclear family.

Such flexibility, however, can pose administrative challenges. The laws will only achieve their purpose if both public and private personnel implementing them understand the broad scope of coverage and take steps to ensure that employees whose families depart from traditional norms are protected from workplace discrimination. This Essay identifies potential obstacles to effective implementation and suggests strategies for addressing them.