I like to think this happens to everyone, but I can’t help thinking it happens to me slightly more often than it should. It’s that moment where you talk out of turn and receive either silence or chaos, and wished you could simply hit rewind.I was at the 2014 DMEC – FMLA/ADAAA Employer Compliance conference in Washington DC just last month. Essentially the 2 topics I have built my career on for the last 16 years, about which things I do indeed know quite a bit.
My session of choice at the time was on FMLA (Family Medical Leave Act) and DOMA (Defense of Marriage Act). Our speaker was a very engaging, sharp woman and she was nearing the end of her lecture. I happened to be sitting in the second row providing her with my undivided attention when I received an urgent email from one of my customers. Instead of ignoring it I did my best to multi task by “discreetly” emailing my customer back. Unfortunately this was when it happened: just as I hit send, my ears picked up on the following statement: “If you telecommute it is deeming your eligibility based on the state you live in, not the state you work in.”
Ironically, just last week I had consulted with an employer group to assist them with determining eligibility for people who telecommute or work on the road, and everyone knows State FMLA is based on the state in which you work. This must have been an inadvertent slip up, so I foolishly speak up and say, “Actually it is determined by your worksite, or where you receive your assignments.”It didn’t take long to realize I must not have been clear on what she had actually said. It could have been the incredulous look on her face, or it could have been the “No!” that erupted in unison behind me. I’m not sure which was my first clue, but both were rather good indicators that I had missed something very important: It appeared the speaker must have been referring to DOMA eligibility and not State FMLA eligibility.
Ironically, I came back to work this week and had an email from a different customer looking for clarification on the overlap between FMLA and DOMA. So I decided to take this opportunity to share my knowledge concerning the subject and redeem myself. (If only to myself!)
The Department of Labor (DOL) regulations defines spouse as a “husband or wife as defined or recognized under State law for purposes of a marriage in the state where the employee resides, including common law marriage in states where it is recognized.” 825.102.
Unfortunately, seemingly contradictory to the above regulation, in 1998 the DOL acknowledged that the FMLA was bound by DOMA’s definition of “spouse” and that this was defined as a person of the opposite sex who is a husband and wife.
A few states do provide greater benefits that include domestic partners, and these leave laws are in addition to the FMLA. If you do not happen to live in a state with additional leave laws for domestic partners, or you do not live in a state where your same sex marriage is lawful, you may not take FMLA leave for your partner under federal or state law.
What happens now that many states have made same sex marriage legal?
On June 26, 2013 the Supreme Court struck down the Defense of Marriage Act (DOMA) and ruled that each state can determine their definition of “Spouse”. In states where marriage has become legal they are now recognized under the federal FMLA as a “Spouse” and should be protected under this law.
If you are an employer who has sites across many states you will need to keep abreast of the states in which marriage is now legal. These states currently include: California, Connecticut, Delaware, Hawaii, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New Mexico, New York, Rhode Island, Vermont, Washington along with the District of Columbia.
All of this can be slightly confusing, so let’s break it down.
- Federal FMLA eligibility is universal. An employee must have been employed for 12 months (these need not be consecutive) and have worked for 1250 hours in the last 12 months. And the worksite must have 50 employees in a 75-mile radius. (Regulation 825.110)
- State FMLA eligibility is determined by the state laws in the state in which you work. These eligibility rules differ from state to state.
- If you telecommute, your worksite is determined by the site in which you receive your assignments. (Regulation 825.111, paragraph 2)
And here we are….
Whether or not your same sex spouse qualifies as a spouse under the FMLA is determined by the state in which you live and whether your marriage is legal there, which would include those who telecommute.
So you see, it appears that although I may know what I’m talking about, perhaps I could use some fine-tuning on my listening skills. Or at least some duct tape.