FMLA and Domestic Partner Benefits for Same-Sex Couples

Introduction

For many years, employees had to worry that if their children became seriously ill, their spouse got cancer, or their elderly parents had a stroke, they would have to choose between caring for that loved one or losing their job. It was a difficult decision that created stress not only for the affected employee but for co-workers as well, who recognized it could easily happen to them too. That changed in 1993 when President Bill Clinton signed the Family and Medical Leave Act into law, providing employees at large companies who had worked for at least one year the right to take leave to care for themselves or a loved one in the event of illness or the birth of a child (Wisensale, 2003).

The nation welcomed the legislation, until it recognized the conservative scope of the mandate. The FMLA does not cover non-traditional couples. This means that heterosexual couples who live together without being married and gay couples are neither eligible for nor protected by the federal act.

In today's society, many couples are non-traditional. They are fully committed to each other and their life together, but for various reasons are not married. Same-sex couples are not permitted to marry under federal law, and many heterosexual couples do not believe the government should require them to have a formal ceremony in order to formalize their commitment to each other. The FMLA leaves those couples without protection.

Recently, companies across the nation have taken a close look at the impact that refusing domestic partner benefits has on the morale of their workforce and have decided to implement such benefits on their own (Wisensale, 2003). In addition, some states have moved to mandate coverage for domestic partners through their employees' jobs.

FMLA Overview and Its Limitations

The FMLA allows workers who have been employed at a company with more than 50 employees for at least one year to take up to 12 weeks of unpaid leave to care for a seriously ill family member, or in connection with the birth or adoption of a child. In addition, the employee is guaranteed the right to return to their job, or a comparable position, upon returning from leave. The company must also continue the employee's health benefits during the leave period; however, if the employee chooses not to return to work after the leave concludes, he or she must reimburse the company for those benefit costs.

The fundamental limitation of the FMLA is its narrow definition of "family." Because the act does not recognize domestic partnerships — whether same-sex or unmarried heterosexual — millions of committed couples are excluded from its protections entirely.

State Mandates for Domestic Partner Benefits

While the federal FMLA does not cover domestic partner couples, several states have taken it upon themselves to mandate that companies operating within their borders provide benefits to employees in domestic partnerships.

California recently introduced and passed legislation providing domestic partners with benefits identical to those received by traditionally married couples in the workplace. This includes life insurance, FMLA-equivalent provisions, and other benefits normally extended to married couples and their families (Mayes, 2003).

Washington State also recently implemented mandates extending workplace benefits to domestic partner couples (Mayes, 2003). These state-level initiatives represent meaningful progress, though they remain piecemeal solutions in the absence of a comprehensive federal standard.

Corporate Trends in Domestic Partner Coverage

With or without the support of federal and state governments, many companies are choosing to provide benefits to employees in domestic partnerships. A recent poll indicated that more than 50% of Fortune 500 companies currently provide benefits to employees in same-sex relationships (Majority, 2006).

Employee demands, the work of advocacy groups, and the consumer power of the gay, lesbian, bisexual, and transgender community have all contributed to this trend. Samir Luther, a project manager at HRC, explains: "Domestic partner benefits are certainly a factor in attracting a GLBT consumer base. Also, private employers find that it's necessary to maintain competitiveness for recruiting and retention. As they get larger in revenue and size, they're more likely to have domestic partner benefits" (Majority, 2006).

The Society for Human Resource Management polled its members and found that 33% offer benefits to same-sex domestic partners and 32% cover opposite-sex domestic partners, representing no significant change from the prior year (Majority, 2006).

The same trend is occurring in the public sector, though not as quickly and not on as wide a scale. Currently there are just under 300 colleges, 150 city and county governments, and 13 state governments offering their employees domestic partner benefits equal to those provided to married employees.

References

Horowitz, E. (2003). Greenbelt offers benefits to domestic partners; City is first Prince George's locality to follow the lead of Baltimore, Takoma Park and Rockville. The Washington Post.

Majority of big firms covering domestic partners. (2006). Employee Benefit News.

Mayes, J. W. (2003). '04 employment law changes. (Employment law). California CPA.

Wisensale, S. K. (2003). Two steps forward, one step back: The Family and Medical Leave Act as retrenchment policy. The Review of Policy Research.