The FMLA applies to private employers with at least 50 employees and all public employers, and their employees that have worked for at least 12 months and at least 1,250 hours in the past 12 months. Under the FMLA, employers are required to give eligible employees up to 12 weeks of consecutive — or in some circumstances intermittent — unpaid sick leave. FMLA was designed to help employees balance their work and family responsibilities by allowing them to take reasonable unpaid leave for certain family and medical reasons.
While recent guidance from the Department of Labor makes clear that employees, including LGBTQ employees, can take leave to care for a child for whom the employee is serving as a parent, even if there is not a legal or biological relationship to the child, the FMLA has a significant shortcoming for same-sex couples. Because federal law does not recognize same-sex relationships, the FMLA does not require employers to provide an employee leave to care for a same-sex partner or spouse.
Further shortcomings arise from the term "serious medical condition," which is defined under FMLA as any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical-care facility, and any period of incapacity or subsequent treatment in connection with such in-patient care; or continuing treatment by a health care provider which includes any period of incapacity. This definition of "serious health condition" may not include all treatments and conditions associated with Gender Identity Disorder or with a person's medically-supervised gender transition. Some government agencies have deemed treatments associated with gender transition as not medically necessary.
What Employers Can Do
Regardless of whether state law raises the floor of medical leave benefits, private employers are free to develop more comprehensive medical leave policies.
Recognizing the role of competitive employment benefits in attracting and retaining a competitive workforce, many private sector employers provide more comprehensive benefits than those required by law. The HRC Workplace Project tracked 502 employers that extend FMLA-type leave to employees with same-sex domestic partners.
- When defining the family members for which an employee is eligible to take leave, employers should make sure such definitions include same-sex partners as well as the children of a same-sex partner, regardless of biological or adoptive status.
- Include Gender Identity Disorder and procedures relating to gender transition as a qualifying condition for employer granted medical leave for both the employee and their partners.
Number and Percentage of Employers with FMLA-Equivalent Partner Benefits
|Fortune 100||Fortune 500||Fortune 1000||AmLaw 200||Raw Totals|
|2011 Total||68 (68%)||204 (41%)||247 (25%)||121 (61%)||502 (—)|