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 couples in domestic partnerships. The FMLA does not require employers to provide an employee leave to care for a same- or different-sex domestic partner.
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 Dysphoria or with a person's medically-supervised gender transition. Some government agencies have deemed treatments associated with gender transition as not medically necessary.
- Family and Medical Leave Inclusion Act
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 Equality Program measures employers that extend FMLA-type leave to employees with domestic partners.
- When defining the family members for which an employee is eligible to take leave, employers should make sure such definitions include domestic partners as well as the children of a domestic partner, regardless of biological or adoptive status.
- Include Gender Dysphoria 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 CEI-rated Employers with FMLA-Equivalent Partner Benefits