FMLA and same sex partners

JKK · October 2002

I have had an interesting question posed by one of my staff members in a same sex relationship as to whether they are entitled to take FMLA leave to care for the partner in the event of serious illness.
Any thoughts on this?

Janet · October 2002

I don't know if there are any court cases on this issue yet, but a same-sex partner doesn't meet the FMLA definition of parent/child/spouse, so my vote would be "no"!

Renie · October 2002

I would check your state law on this one.

Ruskanen · October 2002

FMLA is a minimum federal standard. You can be as generous as you want to be. You can give more than the 12 weeks and you can pay the time off if you want to. But, being a heterosexual, unmarried person in a long term relationship, if you were to give FMLA to that person for their unmarried partner, then I would expect the same treatment for my unmarried partner. Keep that in mind.

greenperson · March 2003

Yes, but the heterosexual partners have the option to marry, the gay couple does not.

greenperson

Don D · March 2003

Neither the law nor consistency in policy is defined by 'OPTIONS'.

Rockie · March 2003

>Yes, but the heterosexual partners have the option to marry, the gay
>couple does not.
>
>greenperson

Check your state laws on this!

Renie · October 2002

Section Number: 825.113
Section Name: What do ``spouse,'' ``parent,'' and ``son or daughter'' mean for purposes of an employee qualifying to take FMLA leave?

--------------------------------------------------------------------------------

(a) Spouse means a husband or wife as defined or recognized under
State law for purposes of marriage in the State where the employee
resides, including common law marriage in States where it is recognized.

I copied this off of the DOL website section on the FMLA.( [url]www.dol.gov[/url] )

My interpretation would be that it if your state recognizes same sex marriages, the FMLA and you should as well

JKK · October 2002

Many thanks for these responses - you have confirmed what I thought, that it would depend on the State Law as to whether it was a requirement.
Thanks again

Don D · October 2002

Isn't Vermont the only state where such a union is legally recognized?

JKK · October 2002

I believe so. The staff member is in Illinois which doesn't recognize same sex marriages.

Rockie · November 2002

Don - Yes, but I understand there are others on the way. The New York Times is now allowing same sex "marriages" or "committment ceremonies" to be placed in their newspaper the same as conventional marriages.

Pork · October 2002

Check your state law; I would bet a wooden nickel that California and possibly Florida would allow that you must under state law. Under Fed law I do not believe Same sex benefit is recognized and/or required, as yet.

njjel · October 2002

At our company we recognize the care of "significant others" for sick leave and FMLA leave and therefore even though it isn't a requirement under FMLA law it is our company regulation that we follow.

Ruskanen · October 2002

I think that's great that your company will recognize "signifigant others" for FMLA. xclap And maybe with changes in families and cultural norms, more companies might be faced with that. People are waiting longer to get married and living together before marriage, for years and years, is more common.

JKK · October 2002

I agree, what a great company and very forward thinking, and obviously caring of and for their staff. I congratulate you on working for such a progressive company!

Dorrie D · October 2002

If the employee is covered by your health insurance, how does the insurance carrier view the relationship in terms of coverage?

jburmeister · November 2002

To: "nnjel" - good for your company! That is so good to hear that companies are finally taking the step toward recognizing that legal marriage is not the only type of living situation out there. Many people do not believe in getting married (hetero and homosexuals...) and the more it's realized, the better...in my humble opinion.

"HR Baby"
Jen Burmeister
HR Specialist
NBPTS
[email]jburmeister@nbpts.org[/email]

San Francisco · November 2002

You won a wooden nickle. As a result of a recent legislation (AB 25), California recognizes domestic partners who have registered with the Secretary of State. This legislation covers same sex partners and heterosexual partners over age 62 and receiving social security. Included in the rights provided is the right of domestic partners to use accrued and available sick leave to care for an ill domestic partner or the child of a domestic partner. While not currently required, we are extending health benefits to registered domestic partners in all the states wherein we conduct business and also entitling them to our employee shopping discount.

Don D · November 2002

How does one define a 'domestic partner'. Does 'partner' have some special physical union connotation, or does roommate qualify?

San Francisco · November 2002

Domestic partner is defined by this legislative act as two adults who have chosen to share one another's lives in an intimate and committed relationship of mututal caring. A domestic partnership is established when allthe following are met:
1) Both persons have a common residence.
2) Both persons agree to be jointly responsible for each other's basic living expenses incurred during the domestic relationship.
3) Neither person is married or a member of another domestic partnership.
4) The two persons are not related by blood in a way that would prevent them from being married to each other in this state.
5) Both persons are at least 18 years of age.

And either of the following:

Both persons are members of the same sex.
One or both of the persons are over the age of 62.

And that's the way it reads here in California.

Ruskanen · November 2002

Does that mean that two heterosexual people that choose not to get married couldn't be considered domestic partners?

Don D · November 2002

Dump your guy for one who's 62 and you've got it!

Ruskanen · November 2002

I told him you said that and he chuckled.

Rockie · November 2002

I think my dogs and I qualify as "domestic partners" except for the sharing living expense part. Of course, they may qualify for the 62 years of age (in dog years).

vmiller MO · November 2002

From a legal point of view, the FMLA defines "Spouse" as: "The term 'spouse' means a husband or wife, as the case may be." The regulations define spouse: "Spouse means a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized." (Sec. 825.113)

There is an argument that FMLA leave is available for same sex partners in Vermont because the State of Vermont recognizes same sex partners; however, such marriages are not recognized in any other State nor do the other States recognize such a marriage even if performed in and under Vermont law.

As to domestic partners that some states recognize, such an arrangement is not "marriage." As a result, it would not appear to meet the FMLA's definition or the definition of the regulations. Of course that answer is only part of the inquiry. The State may mandate leave for a domestic partner independent of FMLA.

Leslie · March 2003

We recognize domestic partner relationships for purposes of FMLA, sick leave and bereavement. However, our insurance does not.

Too bad - my boyfriend pays a fortune for his benefits.

FMLA and same sex partners

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