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Does the FMLA apply to employees who have domestic partners?

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in FMLA Guidelines,Human Resources

Q. Several of our employees live with domestic partners. Are our employees entitled to FMLA leave to care for a partner?

A. It depends. The answer is yes, provided the requested leave is not conditioned on marriage. The FMLA entitles qualified employees of a covered employer to 12 weeks of unpaid leave each year for the following events:

  • Birth of the employee’s child or to care for the newborn child
  • Placement with the employee of a child for adoption or foster care
  • A serious health condition that makes the employee unable to perform his or her job
  • The need to care for a son or daughter, spouse or parent with a serious health condition.

To qualify for FMLA leave, the employee must have worked for the employer for 12 months and worked at least 1,250 hours over the past 12 months.

If the FMLA need arises because of the birth of a child or placement of a child in the employee’s immediate family by adoption or foster care, the worker need not be married to his or her partner to qualify for leave. Qualifying FMLA leave would also be available to the employee to care for the worker’s child or parent with a serious health condition.

The employee’s marital status only matters if he or she seeks leave to care for either an unmarried domestic partner with a serious health condition or the child of such a partner.

Although no courts have addressed this issue, the FMLA regulations define “spouse” as a husband or wife as recognized under state law for purposes of marriage, including common-law marriage in states where it is recognized. Accordingly, if the individual with whom the employee is cohabitating is not a legal or common-law spouse, the worker is not entitled to FMLA leave to care for his or her partner.

Some question exists on leave for the purpose of caring for an unmarried domestic partner’s child.

The FMLA defines the terms “son” and “daughter” as biological children, adopted children, stepchildren, legal wards and children for whom the employee cares in loco parentis. A worker cares for another’s child in loco parentis when the worker takes the place of the natural parent and cares for the child as his or her own.

In some circumstances, that could be a close call. Seek legal advice before acting.

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{ 2 comments… read them below or add one }

Alicia May 31, 2013 at 9:56 pm

I don’t have a comment, it’s a question seeking a comment. I have a partner going in for serious surgery. I want to be there on that day (which is not the problem), but I want to be there the 10 days he has to spend in the hospital immediately following his surgery. Also maybe for additional few days to help him get settled back at our home. We have been together a good 9 to 10 years, but not sure how you qualify as common law and what kind of proof we can offer . . .

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cstaffordeeo@gmail.com July 2, 2012 at 11:29 am

Differs for Fed Employees: On June 14, 2010, the U.S. Office of Personnel Management issued final regulations to modify its definitions of family member and immediate relative, and add related definitions These new and revised definitions modify the regulations at 5 CFR part 630, subparts B, H, I, J, and K, related to the use of sick leave, funeral leave, voluntary leave transfer, voluntary leave bank, and emergency leave transfer and expand the categories of individuals for whom an employee may use these types of leave.

Family member means an individual with any of the following relationships to the employee:

Spouse, and parents thereof;
Sons and daughters, and spouses thereof;
Parents, and spouses thereof;
Brothers and sisters, and spouses thereof;
Grandparents and grandchildren, and spouses thereof;
Domestic partner and parents thereof, including domestic partners of any individual in 2 through 5 of this definition; and
Any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.
….Domestic partner means an adult in a committed relationship with another adult, including both same *** and opposite-*** relationships.

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