The FMLA and domestic partners

Q. Several of our company’s employees live with domestic partners. Are these employees entitled to leave under the FMLA?

A. Yes, provided the leave requested is not conditioned on marriage. Effective Aug. 5, 1993, the FMLA entitles qualified employees of a covered employer up to 12 weeks of unpaid leave each year for the following events:

1. The birth of the employee’s child or to care for the newborn child
2. The adoption of a child (or beginning foster care)
3. A serious health condition that makes the employee unable to perform his or her job
4. To care for a son or daughter, spouse or parent with a serious health condition

A qualified employee is defined as an employee who has worked for the employer for 12 months and worked at least 1,250 hours over the past 12 months.

A worker is entitled to FMLA leave and need not be married to the partner with whom he or she cohabitates as long as the leave sought is to care for a child newly introduced into the employee’s immediate family by birth, adoption or foster care.

Qualifying FMLA leave would also be available to the employee to care for the worker’s son, daughter or parent with a serious health condition. The worker may also qualify for FMLA leave if he or she has a serious health condition.

The employee’s marital status becomes relevant only 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 the 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 this individual.

A question exists concerning leave for the purpose of caring for the child of an unmarried domestic partner. 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 enough call to warrant getting legal advice before acting.