Human Resource Blog

FMLA and Domestic Partnerships

Many companies recognize domestic partnerships for employee benefits purposes. Are domestic partnerships considered to be spouses or relatives under the FMLA? If not do you believe it will be?

Under FMLA, an employee can take time off to care for an immediate family member with a serious health condition. The U.S. Department of Labor defines immediate family member (for FMLA purposes) as a son, daughter, spouse, or parent. Domestic partners are not spouses or relatives under the FMLA.

While no federal law requires employers to grant FMLA leave to domestic partners, companies are certainly free to give unpaid leave if they like. The ABC Company could establish a policy that they will give up to 12 weeks of unpaid leave to employees to care for in-laws or domestic partners. As long as the company applied this law in a way that did not discriminate against workers in a protected class, that would be perfectly legal.

Expanding FMLA to include domestic partners would require a new law to be passed, recognizing such partnerships, or specifically expanding FMLA. Given the reluctance by many people to legally recognize gay couples, it seems unlikely in the immediate future.

A few states have family leave laws that are expanded to include additional relatives, including domestic partners in some cases. Hawaii’s family leave law permits workers to take up to 4 weeks of paid or unpaid leave to care for a grandparent, in-law or “reciprocal beneficiary.” California’s Paid Family Leave law allows employees to take time off to care for a seriously ill child, parent, spouse or domestic partner.  

There is also no provision under FMLA for an employee to take time off to care for a sister or brother, father-in-law, mother-in-law, aunt, uncle, grandparent, niece, nephew, grandchild, cousin or other relatives. Suppose John and Mary are married. John’s mother gets cancer and requires round-the-clock care. John can legally take FMLA leave to care for his mother. However, Mary cannot legally take FMLA leave to care for her mother-in-law.

The FMLA does not permit employees to take leave to care for a domestic partner with a serious health condition. If John and Mary had been living together for 25 years, and Mary needed round-the-clock care because she had cancer, John would not be entitled to FMLA leave.

There is also no provision under FMLA for unmarried partners to take time off to care for one another. Domestic partnerships, whether between an unmarried man and woman, two men or two women, generally have no recognized legal status under federal law. Some countries, such as Canada, do recognize domestic partnerships and confer many of the benefits of marriage to such couples. The United States does not.

The rules are slightly different for military families caring for a wounded soldier. In January 2008, the NDAA or National Defense Authorization Act expanded FMLA coverage for military families. The “next-of-kin” of a wounded soldier can take up to 26 weeks of unpaid leave to care for him or her. Although regulations have not been finalized, that “next-of-kin” could apparently be a cousin, aunt, in-law, or great nephew. It apparently could not, however, be a domestic partner, because domestic partners aren’t related.

If Mary was a wounded soldier who had been living with John for 20 years, John could not take time off to care for her. But, Mary’s second cousin Monika could take up to 26 weeks of FMLA leave, assuming that Monika was Mary’s closest living relative.

FMLA applies to employers with 50 workers within 75 miles. An employee must have worked at least 1,250 hours in the 12 months prior to taking leave, to qualify.

The FMLA, or Family and Medical Leave Act, is a federal law that requires employers to give up to 12 weeks of job-protected, unpaid leave to employees for a variety of reasons. The reasons include bonding with a new child, whether added to the family through birth, adoption or through foster care. It also permits employees to take time off to address their own serious health condition.