7/2/2013 by Allen Smith
Coordination of state leave-law requirements with the federal Family and Medical Leave Act (FMLA) has never been a piece of cake, and it’s just gotten harder after the Supreme Court’s June 26, 2013, ruling that struck down the Defense of Marriage Act (DOMA).
Responding to a SHRM Online e-mail asking about the effect of the DOMA decision, Callan Carter, an attorney at Fisher & Phillips in San Francisco, and Myra Creighton, an attorney at the firm’s Atlanta office, said: “Now that same-sex spouses are ‘spouses’ under federal law if they are ‘spouses’ under state law, all federal laws and regulations that include spouses include the broader same-sex definition in those states where same-sex marriage is legal. FMLA refers to state law for the definition of ‘spouse.’ Thus, for FMLA, an employee can take leave for a serious medical condition,” including military-family leave, of the same-sex spouse if the employee lives in a state that allows same-sex marriage .“Children of same-sex spouses are stepchildren of the non-natural parent now, so the employee can certainly take FMLA leave for their care, as well,” they added. “However, most employers were allowing FMLA leave already for children of same-sex partners because the FMLA uses the ‘in loco parentis’ standard of the child/parent relationship, so an employee performing parenting tasks of a partner’s child was probably already eligible for FMLA leave.”Less Leave AvailableCounterintuitively, the amount of leave an employee can take in states with generous leave provisions for same-sex partners, such as California, now may be lower than it was before the ruling, according to Jean Schmidt, an attorney at Littler Mendelson in New York.California’s Family Rights Act gives all employees 12 weeks of unpaid family and medical leave, including time off to care for same-sex domestic partners or spouses. When DOMA was in place, the FMLA did not provide this type of leave. So an employee could take 12 weeks under the state law to care for his or her same-sex spouse and take another 12 weeks of FMLA leave to care for his or her own serious health condition. The two types of leave could not run concurrently.However, in California these leaves can now be used simultaneously, since same-sex spouses are recognized under FMLA regulations as spouses entitled to family and medical leave where same-sex couples are recognized, Schmidt explained.Another example of same-sex spouses getting less leave time as a result of the decision is if they work for the same employer; in that case, they are now limited to a combined total of 12 weeks of family leave for a birth, to place a child up for adoption or in foster care, or to care for a parent with a serious health condition. These are the same limits that other spouses face.Although the FMLA regulations define “spouse” based on where individuals reside, Schmidt said the Obama administration could change that to define it based on where couples were married.President Obama indicated a desire to possibly change regulations in light of the DOMA decision. On June 26, 2013, he said: “We welcome today’s decision, and I’ve directed the attorney general to work with other members of my cabinet to review all relevant federal statutes to ensure this decision, including its implications for federal benefits and obligations, is implemented swiftly and smoothly.”Right to Deny Recognition of Same-Sex MarriagesDespite the Supreme Court’s ruling, states still have the right not to recognize same-sex marriages originating in other states or territories, Nonnie Shivers, an attorney at Ogletree Deakins in Phoenix, told SHRM Online.“This is because Section 2 of DOMA was not considered by the court and still stands,” Shivers explained. “Therefore, in the 13 states that recognize gay marriage—California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington, plus the District of Columbia—applicability of the FMLA would depend on the state definition of marriage.”FMLA Administration Challenges“We recommend that employers in those states which allow same-sex marriage or recognize same-sex marriages performed in other jurisdictions change the way they administer their FLMA policies immediately,” Carter and Creighton said.“FMLA administration will be harder for the employer, as the employer will need to keep abreast of states’ laws on same-sex marriage, the state of residence of the requesting employee, and the state or jurisdiction in which the marriage occurred to administer an FMLA-leave request,” they added.Given the difficulty in FMLA administration that’s likely to follow the DOMA decision, “FMLA administrators may want to consider expanding their definition of family member beyond what is federally required and go ahead and honor all same-sex domestic partnerships/civil unions so that each FMLA request does not turn into a full-blown legal-research project,” they recommended.“The simple approach is to make sure that the administrator knows, for all employees, who the spouse is,” said Megan Norris, an attorney at Miller Canfield in Detroit. “If they are in different states with different laws, that will affect who qualifies as a spouse. But once you know who the spouses are, nothing changes from the previous administration. Policy language should not change. It should just say ‘spouse.’ Then it will apply everywhere, regardless of the state.”Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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