Does the FMLA provide any protection for same-sex couples?

Does the FMLA provide any protection for same-sex couples?

Gay cityhall gavelThe FMLA provides federally protected leave for legally married spouses who have just experienced a birth or adoption of a child, or who need to take leave to care for a sick spouse, parent or child. As the issue of equal rights for same-sex couples has come to the forefront, many have begun to ask what that means in terms of a same-sex couple’s FMLA rights.  Can a same-sex partner or spouse take FMLA protected leave to care for her same-sex partner or spouse or the children that they are raising together? 
Currently the Defense of Marriage Act (“DOMA”) governs who is considered a “spouse” for purposes of all federal laws. DOMA defines marriage as a legal union between one man and one woman. Therefore, because of DOMA, the FMLA does not currently afford protections or rights to same-sex couples or spouses. As such, if one partner in a same-sex couple needs to take time off work to care for their sick same-sex partner, such leave or absence is not protected leave under the FMLA.

On March 25, 2009, four House Democrats introduced the Family Leave Insurance Act of 2009. The Family Leave Insurance Act would extend protected leave to care for a domestic partner. On April 28, 2009, U.S. Rep. Carolyn Maloney (D-NY) introduced the Family Medical Leave Inclusion Act. If passed, this Act would expand the FMLA to permit leave to care for (among others) a same-sex spouse, domestic partner, or adult children and children of a domestic partner. Under both bills, a domestic partner of an employee is a person recognized as a domestic partner or same-sex spouse under any laws of the State in which the employee resides, including domestic partner registires or civil union laws, or “in the case of an unmarried employee who lives in a State where a person cannot marry a person of the same sex under the laws of the State, a single, unmarried adult person of the same-sex as the employee who is in a committed, intimate relationship with the employee, is not a domestic partner to any other person, an who is designated to the employer by such employee as that employee’s domestic partner.” Either of these bills, if passed, would expand the protections of the FMLA to same-sex couples. However, neither bill has passed as of yet.

While same-sex partners are still unable to claim rights to care for each other under the FMLA, the Department of Labor (DOL) issued guidance on June 22, 2010 clarifying how the FMLA applies to children in a same-sex relationship context. The June 22, 2010 guidance specifically states that an employee who shares in the responsibility of raising a child with a same-sex partner, even if the employee does not have a legal relationship with that child, is entitled to FMLA protected leave in order to bond with the child following placement, or to care for the child if the child has a serious health condition. As a result of this opinion, even if the same-sex partner is not biologically related to the child and has not adopted the child, he or she is still entitled to take FMLA protected leave to care for the child.

Although employers still are not required by federal law to provide same-sex partners leave to care for each other, in light of the DOL’s recent opinion letter, employers are now required to allow leave for same-sex partners to care for children they are raising with a same-sex partner or spouse, regardless of the employee’s legal relationship to the child (or lack thereof).

Further, although federal law still does not allow leave for same-sex partners to care for each other, some states and municipalities have passed laws providing family leave to same-sex couples. Specifically, in Wisconsin, the Wisconsin Family Medical Leave Act (“WFMLA”) requires employers with 50 or more employees to provide WFMLA leave to employees to care for their domestic partners and the parents of their domestic partners.  Interestingly, the WMFLA, unlike the federal FMLA, does not allow employees to take leave to care for a domestic partner’s child. 

If you are in a same-sex partnership or marriage and feel that you are being refused your rights under the federal FMLA or a similar state or local law, you should immediately contact an attorney to determine whether your rights are being violated.


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