NEW REQUIREMENTS AND CONSIDERATIONS IN APPLYING FMLA TO SAME SEX COUPLES

The U. S. Supreme Court ruled recently that the portion of the Defense of Marriage Act (DOMA) which denied recognition of marital status to couples of the same sex under federal law was unconstitutional. This ruling expands potential FMLA coverage as a result to same sex spouses. Employers will have to fine tune administration of FMLA leave to determine whether leave related to a same sex spouse issue should be granted. The employer will have to grant FMLA leave to an employee for legitimate, covered requests for a same sex spouse, if the affected employee resides in a state that recognizes same sex marriage.

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.

To learn more about Adair and her practice visit her profile page and her Labor & Employment Law page.

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