Does the FMLA apply to employees who have domestic partners?

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.