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FMLA: Same Sex Marriage
Recently, the Department of Labor (“DOL”) released a revised Fact Sheet #28F titled “Qualifying Reasons for Leave under the Family and Medical Leave Act.” Therein it defined spouse as “a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides[.]” Naturally, redefining the term spouse in this way enlarged the circumstances under which an employer is required to offer FMLA leave. Employees residing in a state that honors same sex marriages may request time off to care for their spouses. Ohio does not recognize same-sex marriage, but thirteen states and the District of Columbia do. The states which allow same sex marriage are California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington.This extended FMLA coverage is a result of United States v. Windsor, a recent United States Supreme Court decision that struck down Section 3 of the Defense of Marriage Act (“DOMA”). This means the Federal government no longer defines marriage as “a legal union between one man and one woman as husband and wife” or spouse as “a person of the opposite sex who is a husband or a wife.”
In a nutshell, the FMLA requires private employers to preserve an employees’ position upon his or her request during 12 weeks of unpaid leave if (1) the employer has 50 employees within 75 miles of the requesting employee’s worksite; (2) the requesting employee started work at least 12 months prior and put in at least 1,250 hours since his or her date of hire; and (3) the employee is confronted with a serious health condition or is in the process of expanding his or her family. Importantly, a “serious health condition” includes that of a parent, child or spouse, in which case the employee may request leave to care for the ailing individual.
If you have operations in any of the above listed states and you employ at least 50 employees within a 75 mile radius, then the company must provide FMLA leave for an employee to care for his or her same-sex spouse. You should also bring administrators up to speed on this change and revise any written policies pertaining to the FMLA.
Should you have any questions regarding the above article or FMLA issues in general, please do not hesitate to contact Colleen Koehler, Lynn Schonberg or Ryan Neumeyer at 216-447-1551.