Leave Law Applies to Same-Sex Partners

Article excerpt

Byline: ON THE JOB by Dan Grinfas For The Register-Guard

Question: We have an employee who wants to take time off to help care for the terminally ill mother of his same-sex domestic partner.

We know that we have to allow time off for an employee with a sick parent-in-law under the Oregon Family Leave Act, but is this situation covered, too?

Answer: Yes. The OFLA regulations at OAR 839-009-0200(5) include same-sex domestic partners and their parents and children as covered family members.

If you employ 25 or more individuals in Oregon, you are covered by OFLA. And if your employee has worked an average of 25 hours a week in the past 180 days, he is eligible to take up to 12 weeks of protected leave for various qualifying events, including the serious health condition of a family member.

Same-sex domestic partners are included in OFLA's "family member" definition based on Tanner vs. Oregon Health Sciences University, a case decided by the Oregon Court of Appeals in December of 1998.

The Tanner decision was based on the Oregon Constitution and the Oregon civil rights law that prohibits discrimination based on an employee's sex or the sex of a person with whom the employee associates.

The Court held that Article I, Section 20 of the Oregon Constitution prohibits state laws from denying same-sex domestic partners rights that are available to married couples.

Another holding of the Tanner case was that employment discrimination and harassment based on sexual orientation is illegal for all Oregon employers. The court ruled that public employers such as OHSU must offer employee benefits to same-sex domestic partners to the same extent that they offer benefits to spouses.

You may be wondering about the legal definition of "same-sex domestic partner." The OFLA rules don't provide a definition, nor did the appellate court.

However, when the Tanner case was at the trial court level, the Multnomah County Circuit Court provided criteria for same-sex domestic partner status, and BOLI would consider the same tests if the status of an employee's partner were an issue. …