Last week at The EmpLAWyerologist, we took our first look at Obergefell v Hodges, the Supreme Court’s ruling that the Constitution requires recognition of same-sex marriages. Specifically we looked at its impact on employee benefits (Click here if you missed that post.) Obergefell affects other employment-related issues though. This week, we will focus on how Obergefell affects laws and policies regarding family and medical leave–after the jump of course…
Let’s first briefly review some FMLA basics: Employers with 50 or more employees (either in one location or in multiple locations located within a 75-mile radius) are subject to FMLA requirements. For an employee to be eligible for FMLA leave s/he must:a) have worked for a covered employer for at least 12 months;and b) have performed at least 1250 hours of service for the same employer in the 12 months immediately preceding a request for leave;and c) the leave must be for one or more of the following reasons:
- birth of a child or placement of a child with the employee for adoption or foster care;
- to care for a spouse, child or parent with a serious health condition;
- to care for his or her own serious health condition;
- for a qualifying exigency arising out of the spouse, child or parent being a military member on covered active duty or having been called to covered active duty status;
Employees may also be eligible for up to 26 weeks of FMLA leave during a “single twelve-month period” to care for a covered service member with a serious injury when the employee is the service member’s spouse, child, parent or next-of-kin.
You can probably figure out where Obergefell comes into play. FMLA protections now extend to same-sex spouses. Wait a minute. Didn’t US v Windsor take care of that about two years ago? Not entirely. US v Windsor struck down provisions of the Defense of Marriage Act (DOMA); more specifically, US v Windsor struck down DOMA’s definition of marriage as a union between a man and a woman. As I mentioned here, the ruling required federal agencies to recognize same-sex marriage and required amendment of federal laws to do so as well. Theoretically, Windsor required at least a regulation defining “spouse” under the FMLA as including same-sex spouses. The United States Department of Labor did in fact update its regulations, adopting a final rule in February 2015. That rule required that same-sex marriages performed in states that recognized such marriages are valid marriages–even if their state of residence did not recognize those marriages. The rule was finalized February 25, 2015 and was to go into effect March 27, 2015.
Sounds good, right? Well, Texas v United States put that Rule on hold — at least in Texas, Arkansas, Louisiana and Nebraska. The United States District Court for the Northern District of Texas granted a preliminary injunction requested by those states. The injunction essentially held enforcement of that rule in abeyance pending final resolution of the case. How did that happen? The states seeking the injunction argued that states define marriage, and that states are not required to recognize marriages performed in other states. Obergefell should render any such arguments (which many contend are at odds with the US Constitution’s Full Faith and Credit Clause) moot. That means that the Department of Labor’s rule re-defining “spouse” to include same-sex spouses should be in effect. In turn that means that same-sex spouses, if they work for a covered employer, and if they are otherwise eligible, have the same FMLA benefits as those seeking FMLA leave to care for an opposite-sex spouse.
What if your workplace is not subject to FMLA? It may be subject to state or even local family leave laws. Many states and localities have passed paid sick leave laws. Those laws too generally allow for time off to care for a spouse’s serious medical condition. There too, “spouses” must include same-sex spouses. What’s more, if you employ people in a state with laws prohibiting discrimination based on marital status you will likely be prohibited from any action that can be seen as discriminating against an employee or applicant who is in a same-sex marriage. For example, let’s say your company operates in just one location and has 35 employees. It will not be subject to the FMLA. Whether or not your state or locality has any family medical leave laws or paid sick leave laws, if it has a law prohibiting discrimination based on marital status, and if your company allows for time off to care for an ill spouse (and most companies do) it could face liability if it only allows this kind of leave time for those in heterosexual marriages.
What about FMLA or other family medical leave time to care for children of same-sex couples? Obergefell has no impact here, because Windsor and the US Department of Labor already took care of that. After Windsor, the DOL affirmed that otherwise eligible same-sex parents standing in loco parentis (or essentially acting as parents) to children are protected under the FMLA.
One more point on Obergefell and employee leave laws: the ruling impacts other leave policies that define immediate family or that extend leave time or benefits to cover familial situations. This would include bereavement leave for death of spouses or in-laws. Again, if you offer such leave time to heterosexual spouses you must offer it to same-sex spouses. Here too, if the state(s) where you employ people prohibits discrimination based on marital status then this is another way in which you could incur liability if you do not update your policies to reflect Obergefell‘s requirement that same-sex marriages (and spouses) receive the same recognition as heterosexual marriages and spouses.
Join The EmpLAWyerologist again next week, same time, same station, for a discussion on Obergefell and other Equal Employment Opportunity (EEO) issues. Cheerio!
Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent employment counsel on any issues discussed here.
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