FMLA: Same-Sex Marriage and Spouse

On February 23, the US Department of Labor finalized its rule change that officially extended all rights under the Family and Medical Leave Act (FMLA) to cover same-sex marriages.

There have been many changes to the law regarding same-sex spouses in recent years, and changes to the FMLA was seen by some as a big step towards equal treatment under federal laws.

DOMA: Where it all began

The long road to the recent FMLA changes can be traced all the way back to September 1996, when President Bill Clinton signed the Defense of Marriage Act (DOMA) into law.

While DOMA became a divisive issue in the ensuing year, the law largely had bipartisan support when it was first enacted. However, the members of Congress who did vote against its passage were all Democrats. With some resistance from his own party, Clinton still signed the bill, although some news reports said he was “reluctant” to do so.

The law defined marriage in the United States as being between one man and one woman, officially making same-sex marriage illegal. The law also allowed states not to recognize same-sex marriages conducted in other states.

This meant that same-sex spouses were not officially recognized for a number of federal purposes, including bankruptcy proceedings, tax filings, laws protecting federal employees and their spouses and financial aid eligibility. A 1997 report by the Government Accountability Office found that over 1,000 federal provisions were contingent on marital status.

Interestingly, when the US military ended its “Don’t ask, don’t tell” ban on homosexuals serving in the military, Admiral Mike Mullen, Chairman of the Joint Chiefs of Staff, said that DOMA prevented the military from extending rights enjoyed by heterosexual couples, such as military base access, legal services, and housing allowances.

The push back against DOMA

As was stated before, DOMA became increasingly unpopular in the years following its passage –particularly among Democrats and libertarians. Even Clinton, the man who signed DOMA into law, would begin calling for it to be repealed or struck down by the Supreme Court.

By the middle of the last decade, it appeared that cultural attitudes toward same-sex marriage had begun to change and in keeping with that change, a number of states and the District of Columbia passed laws or had court decisions that made homosexual marriage legal on the state level.

In July 2010, a US District Court issued a same-sex ruling that said DOMA’s Section 3, which explicitly excludes same-sex couples from marriage, is unconstitutional. Then, in February 2011, President Barack Obama and Attorney General Eric Holder announced that the US executive branch would no longer enforce DOMA.

After a number of other district courts also ruled that DOMA was unconstitutional, a US appeals court came to that same conclusion, making a same-sex of equality ruling in May 2012. The US Supreme Court is expected to issue a same-sex ruling for marriage in 2015.

With the Obama Administration firmly against enforcing DOMA, the Department of Labor has been gradually extending marriage benefits to same-sex unions. In 2014, the federal agency changed its definition of “spouse” for certain employment laws to include same-sex marriages.

The change to FMLA

The change last year did extend a number of previously unenjoyed benefits to those in same-sex marriages, but it did not include unpaid leave under the FMLA. That changed when the DOL issued its final rule on the matter.

According to the rule, which takes effect on March 27, 2015, employees in legal, same-sex marriages, despite where they live, will have the very same rights as those in opposite-sex marriages to federal job-protected leave within the FMLA to tend to a spouse with a severe health issue.

The rule focuses specifically on the “place of celebration” to determine eligibility under the FMLA, not their “state of residence,” meaning if a homosexual couple gets married in a state where their union is legal – the marriage will be recognized for FMLA purposes. In other words, if a gay couple gets legally married in one state, then moves to another state where gay marriage is still illegal – their employers in that must still recognize their marriage during FMLA leave situations.
"The basic promise of the FMLA is that no one should have to choose between the job and income they need, and caring for a loved one," said Secretary of Labor Thomas E. Perez in announcing the rule change.

Passed in 1993, the FMLA allows all qualified employees to take unpaid time away from their job to care for their own medical or military-related issue. An employee qualifies for FMLA if they work for any government agency or a private company that has 50 or more employees within a 75 mile radius. An employee must also have worked for their employer for at least a year and put in a minimum of 1,250 hours of work within the last 12 months.

Qualified employees can take up to 12 weeks of leave every 12 months, and they cannot be fired or otherwise penalized for taking leave. Upon coming back to their job, the employee must be given either that job back or one equal in all respect to the one they had.

So what does this change mean for employers?

The DOL’s change to the FMLA means that qualifying companies and all government agencies must treat those in same-sex marriages the same as those in mixed-sex marriages when it comes to FMLA leave.

This still means that two people need to be legally married with a valid state-issued marriage license to be considered spouses under the FMLA. “Domestic partners” and those in “civil unions” are not same-sex spouses under the law.

The change actually makes eligibility determinations much clearer for companies that operate in multiple states, including at least one state on each side of the gay marriage divide. It also uncomplicates things for employees who want to transfer between locations in different states.

All qualified companies and government agencies should take this change as an opportunity to review and potentially revise their FMLA policies and procedures.

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