The Supreme Court ruled Section 3 of the Defense of Marriage Act (DOMA), which denied recognition of marital status to same-sex couples, is unconstitutional. In doing this, the Court increased the number of employees now entitled to leave under the Family and Medical Leave Act (FMLA). Employers must now review and update their FMLA leave policy accordingly.
First, let’s review the ruling. The Court’s ruling addressed Section 3 of DOMA that defined, for purposes of federal laws and regulations, the term “spouse” as a person of the opposite sex. The Court found Section 3 to be unconstitutional because the authority to define and regulate marriage has traditionally belonged to the states. With this in mind, Section 3 unlawfully denied protection at a federal level to those in a same-sex marriage who are legally married within their state of residence. As a result of this ruling, if the state an employee resides in legally recognizes same-sex marriage, their employer needs to as well for FMLA purposes.
Now, what does this mean for your FMLA policy? You need to know the laws in the states in which your employees live. The state in which your business is located is not important, only the states in which your employees reside. In other words, if you have employees that live in one of the states where same-sex marriages are lawful (District of Columbia, California, Connecticut, Delaware, Iowa, Massachusetts, New Hampshire, Maine, Maryland, Minnesota, New York, Rhode Island, Vermont, Washington), you need to review your FMLA policy. You have to choose whether 1) you will determine leave to care for a same-sex spouse based on the employee’s state of residence or 2) you will treat all marriages equally. In option 2, you need to be okay with the possibility of employees in same-sex marriages who reside in states that do not recognize same-sex marriages taking more than 12 weeks of leave, as any leave they take to care for a spouse would not legally qualify under FMLA. For example, if an employee residing in a state that does not recognize same-sex marriages takes 12 weeks to care for a same-sex spouse, the employee would still legally qualify for 12 weeks of FMLA to care for another family member, such as a parent, because caring for a parent is an FMLA-qualifying leave.
Additionally, you must be careful when confirming and documenting your employees’ same-sex spousal relationships to ensure you do not discriminate in any way. Your process and requests regarding FMLA leave for employees in same-sex marriages who reside in states that recognize same-sex marriages must be handled the same as they would be for employees in heterosexual marriages.
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