The Family and Medical Leave Act of 1993 grants legally married spouses up to twelve weeks of unpaid leave from work to care for a seriously ill spouse, parent or child. However, the law does not cover same-sex partners or spouses, making it impossible for some employees to be with their partners during times of medical need. The following information relates to FMLA benefits alone. Employers may opt to extend FMLA-equivalent benefits that recognize same-sex partners and children of partners.
Can an employee take FMLA leave to care for a same-sex partner?
No. The FMLA has many shortcomings, especially for same-sex partners. It may not be used to care for a same-sex partner or spouse as federal law does not recognize same-sex relationships.
Can an employee take FMLA leave to care for the child of a same-sex partner?
Yes. The FMLA’s definition of "son or daughter" includes a child of a person standing "in loco parentis," that is, acting as a parent. On June 22, 2010, the Department of Labor’s Wage and Hour Division issued guidance indicating that an employee need not have a legal or biological relationship to the child to take leave and "either day-to-day care or financial support may establish an in loco parentis relationship where the employee intends to assume the responsibilities of a parent with regard to a child." In a press release about this announcement, Labor Secretary Hilda Solis stated, "The Labor Department’s action today sends a clear message to workers and employers alike: All families, including LGBTQ families, are protected by the FMLA." This leave can be taken for the birth or placement of a child to whom the employee intends to be a parent.
Could an employee claim leave under the FMLA and a state FMLA law twice in one year?
In certain cases, yes. Because federal FMLA rights may not be waived by the employee, employers may occasionally find themselves required to give both state and federal FMLA benefits to certain employees. For example, if an employee first takes state FMLA leave to care for a sick partner, the employee may then later take federal FMLA leave to care for a sick parent. However, if an employee first takes all allowable FMLA leave to care for a sick parent, the employee is not later entitled to take FMLA leave to care for a sick child. The reason? FMLA regulations mandate that FMLA benefits run concurrently with any state FMLA-type benefits that an employee is entitled to claim.  However, if an employee first claims benefits under a state FMLA-type law for a relationship not recognized under the federal FMLA, such as a domestic partner, the federal FMLA does not apply and is not "triggered." Therefore, since an employee's rights under the federal FMLA may not be waived, they are entitled to take both the state FMLA-type leave and the federal FMLA leave.
It should be noted that this scenario could also occur in a state without a more expansive law if an employer adds domestic partners to its definition of family members for which an employee is eligible to take leave. This concern can be partially alleviated by drafting an employee policy that limits time off to care for family members included in the employer policy to 12 weeks unless otherwise required by law. By doing so, employers can eliminate one of two possible "double-dipping" scenarios; an employee who first takes off 12 weeks to care for his or her ill mother (or other FMLA-defined dependent) would not then be able to qualify under the employer's policies for any more leave to care for his or her domestic partner or other dependents.
This will continue to be a consequence of FMLA's non-inclusive scope until corrective legislation eliminates this gap. HRC supports legislation that will give same-sex couples equal rights to FMLA leave.
How do these laws apply to transgender employees?
Certain procedures and treatments for transgender employees and their spouses or partners may not qualify for FMLA leave. Currently, in order to qualify for FMLA leave, a transgender employee must have a "serious medical condition" related to their transgender status, or be receiving treatment for Gender Identity Disorder (GID or Gender Dysphoria). A "serious health condition" is "an illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, or continuing treatment by a health care provider." Examples of treatment that mayqualify as a "serious health condition" would include sex reassignment surgery requiring overnight hospitalization, continued counseling or hormone therapy. However, each instance is fact specific and no current clarifying law or regulation exists that addresses gender transition treatments specifically. It is worth noting that some government agencies have begun to find treatments associated with gender transition not medically necessary. Because medical issues related to Gender Identity Disorder or gender transition may not always qualify under federal law, a comprehensive benefits package should include Gender Identity Disorder or transition as a qualifying condition for medical leave under employer-granted benefits.
 Wage and Hour Division http://www.dol.gov/whd/opinion/adminIntrprtn/FMLA/2010/FMLAAI2010_3.htm
 US Department of Labor clarifies FMLA definition of 'son and daughter'http://www.dol.gov/opa/media/press/WHD/WHD20100877.htm
 29 C.F.R. 825.701(a).
 See Department of Labor, Do State laws providing family and medical leave still apply?, available athttp://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.701.htm. ("If State law provides six weeks of leave, which may include leave to care for a seriously-ill grandparent or a "spouse equivalent," and leave was used for that purpose, the employee is still entitled to 12 weeks of FMLA leave, as the leave used was provided for a purpose not covered by FMLA. IF FMLA leave is used first for a purpose also provided under State law, and State leave has thereby been exhausted, the employer would not be required to provide additional leave to care for the grandparent or "spouse equivalent")
 29 U.S.C. § 2611(11)
 The Legal Aid Society of San Francisco, Employment Law Center, Gender Identity Discrimination Employment Rights for Transgender Workers Your Legal Rights, http://www.las-elc.org/GenderIdentDiscrim.pdf.