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New Hampshire FMLA and Domestic Partners

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In New Hampshire, can an employee take FMLA leave to care for their domestic partner?

The federal Family and Medical Leave Act (FMLA) guarantees leave for workers to care for seriously ill members of the “immediate family,” and the U.S. Department of Labor’s definition of “immediate family” does not include domestic partners.

The definition is interpreted to include spouses, children, and parents only. So the federal law does not require New Hampshire employers to grant leave to care for a domestic partner. For example, if Mary and John have been living together for 25 years, and Mary has developed cancer that requires constant care, John is not legally guaranteed FMLA leave.

To expand the FMLA to include domestic partnerships would require a new law recognizing such partnerships. Because many people in this country remain reluctant to legally recognize gay couples, however, no such law appears likely in the near future. Whether between 2 women, 2 men, or a man and a woman, domestic partnerships have no legal status in the U.S. Canada and other countries have recognized them and granted rights, but that has not happened here yet.

That is not to say that a company is prohibited from granting leave to a member of a domestic partnership. The ABC Company, for example, would be entirely within its legal rights to grant such leave, as long as it did not discriminate due to race, color, gender, age, religion, or national origin.

In addition, some states have passed leave laws that have expanded the definition to include domestic partners. Hawaii, for example, has included grandparents, in-laws, and “reciprocal beneficiaries” among those guaranteed up to 4 weeks of paid or unpaid leave. In California, the Paid Family Leave law allows a worker to take time off to care for a seriously ill parent, child, spouse, or domestic partner.

The FMLA guarantees up to 12 weeks of unpaid, job-protected leave annually for a worker to care for a family member with a serious health problem. Companies with 50 or more workers within a 75-mile radius must comply. Employees must accumulate 1,250 hours of work in the 12 months before the leave in order to qualify. JH