FMLA Leave Now Available to Same-Sex Spouses
The United States Supreme Court’s historic decision in United States v. Windsor struck down provisions of the Defense of Marriage Act (DOMA) limiting the federal government’s recognition of marriage to the union of “one man and one woman.” In doing so, it opened the door for same-sex couples to have access to the same federally granted rights and benefits that their opposite-sex couple counterparts enjoy. Implementation of the decision requires the myriad federal agencies that administer various government programs to update and clarify policies as they apply to same-sex spouses. Among the areas of law affected by the decision include tax law, immigration, estate planning, and employment law. As the regulations are updated and clarified, the way federal programs are administered will change in order to be inclusive of most same-sex couples.
In August of 2013, the United States Department of Labor (DOL) issued an updated fact sheet regarding the Family and Medical Leave Act (FMLA) in order to reflect the changes mandated by the Windsor decision. The FMLA provides for spousal leave and continuation of health insurance programs that require leave from work due to medical or family-related issues. At issue are provisions of the FMLA which allow for an employee to take leave in order to care for a spouse who has a serious health condition or to deal with issues related to a spouse’s military deployment.
Under the new guidelines, the DOL defines “spouse” as a “husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including ‘common law’ marriage and same-sex marriage.” This definition limits the extension of benefits to same-sex couples residing in a state that recognizes same-sex marriage; those who are legally married in a jurisdiction recognizing same-sex marriage but residing in a state that does not are currently not covered by the FMLA.
Many observers believe that there may be more changes coming soon to extend FMLA protections to all same-sex couples, including those not residing in states that recognize same sex marriage. In an email to DOL staff, Secretary of Labor Tom Perez stated that “I have directed Agency Heads within the Department to look for every opportunity to ensure that we are implementing this decision in a way that provides the maximum protection for workers and their families.”
Under the FMLA, employees with qualifying reasons to take up to 12 weeks of leave within a 12 month period. Employers should make sure that their FMLA policies are up to date and comply with the new DOL guidance. If you questions that you may have regarding your or your employee’s FMLA benefits, you should contact one of the experienced employment law attorneys of HKM as soon as possible.