What Married and Unmarried Same-Sex Parents Should Know About Family Leave

The U.S. Department of Labor has issued new guidance that confirms married same-sex couples are now eligible for the same leave as married different-sex couples under the Family and Medical Leave Act (FMLA). That’s one of the very concrete Good Things to happen since the U.S. Supreme Court ruled on DOMA — although I’d argue that all committed couples should be eligible, married or not. Unmarried same-sex parents should note, however, that they still have some rights under FMLA.

Same-sex parents, married or not, are eligible to take leave under FMLA to care for a child, even if the other partner is the child’s only legal parent. The Family Equality Council explains:

FMLA allows workers to take leave to care for a “son or daughter.” FMLA defines a “son or daughter” as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.”

“In loco parentis” doesn’t mean “as a crazy parent” (though we’ve all had those moments) — it means “the person who stands in the place of a parent, but does not have a legal or biological relationship to his or her child,” and includes someone who is caring as a parent for a same-sex partner’s legal child(ren). Go read the fuller explanation at the FEC site if you’re interested, and of course consult a lawyer if needed.

FMLA doesn’t cover all employees in the country. In particular, only full-time workers at companies with 50 or more employees are eligible. If you are eligible, though, here’s what you get, according to the Labor Department —  note that it applies to foster and adopted children as well as biological children:

• Twelve workweeks of leave in a 12-month period for:
  • the birth of a child and to care for the newborn child within one year of birth;
  • the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
  • to care for the employee’s spouse, child, or parent who has a serious health condition;
  • a serious health condition that makes the employee unable to perform the essential functions of his or her job;
  • any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;” or

• Twenty-six workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember’s spouse, son, daughter, parent, or next of kin (military caregiver leave).

Some employers may offer additional leave on top of FMLA, so check with your HR department if you’re thinking of taking it.