In Absence Management, FMLA

As we all know, more and more states are working towards human equality and legalizing same sex marriage, certainly marking this day in age as a significant and historic decade for human rights.

The U.S. Department of Labor recently submitted a proposition to revise the definition of “spouse” under the FMLA. The revision was proposed in light of the U.S. Supreme Court’s decision in United States v. Windsor, which held Section 3 of the federal Defense of Marriage Act (DOMA), restricting the definition of “marriage” for federal law purposes to opposite-sex spouses, and determined it was unconstitutional.  This is a landmark ruling saying those in same sex marriages cannot be excluded the rights provided under more than 1,000 Federal laws and the U.S. Department of Labor recent proposal would extend this to FMLA.

Redefining MarriageCurrently under the FMLA, an employee may take leave to care for their spouse when there is a qualifying “serious health condition” under Department of Labor guidelines. Since same sex marriage is currently legal in 19 states and banned in 31, this has proven to be a rather confusing and challenging task for employers to manage.   An employee may have been legally married in a state that recognizes same sex marriage, but moved to a state that does not. Previously this would have negated their married status, and they would no longer be offered the protections under the FMLA.   Imagine your spouse becoming critically ill and being advised you can’t miss work because your marriage is no longer recognized. Or worse, you were terminated for it. Yes it happens and it’s not pretty.

The new proposition would change the definition of “spouse” to be based on a marriage that was recognized under the law in which the celebration of marriage took place. If the marriage was entered into in a foreign jurisdiction, it would be recognized under the FMLA if it could have been entered into in at least one U.S. state. There are 16 countries who recognize same sex marriage today, so hey get married on your vacation!

“The basic promise of the FMLA is that no one should have to choose between succeeding at work and being a loving family caregiver,” said Labor Secretary Thomas Perez. “Under the proposed revisions, the FMLA will be applied to all families equally, enabling individuals in same-sex marriages to fully exercise their rights and fulfill their responsibilities to their families. “

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