NEW REQUIREMENTS AND CONSIDERATIONS IN APPLYING FMLA TO SAME SEX COUPLES
For Texas employers, it may not be an issue unless you have employees who reside in a state that allows same sex marriages. That list is rapidly expanding, but now includes Connecticut, California, Iowa, Massachusetts, Delaware, Maryland, Minnesota, Maine, New Hampshire, Rhode Island, New York, Washington and Vermont. If you are an employer with an employee in one of those states who makes a request for FMLA leave for a same sex spouse that would be covered otherwise by general FMLA regulations for a spouse, such as to care for a spouse, you will need to treat the request just as you would for a spouse of a traditional marriage. If the employee does not reside in a state that recognizes same sex marriage, you do not have to grant such FMLA leave.
Employers with employees in different states have a choice: you either can handle requests for same sex spouse-related leave on a case-by-case basis depending on where the employee resides, or you can opt instead to treat every “marriage” the same, whether the residence state of the employee recognizes the marriage as lawful or not, even if it results in providing FMLA leave to the employee which otherwise might not be required. As more employees go to other states for same sex marriage but return to reside in a state that does not recognize the marriage as lawful, this becomes an even bigger “benefits” consideration for employers. It will be a troubling issue for many employers.
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