When the Supreme Court struck down the Defense of Marriage Act June 26, the justices opened a number of doors -- including extending the protection of the federal Family and Medical Leave Act (FMLA) to many same-sex married couples, so they are no longer forced to choose between caring for their spouse and keeping their job.
Here's how it works: Under FMLA, people who meet certain requirements (have been on the job for at least a year working at 25 or more hours a week for an employer of 50 or more) are allowed protected time from work to care for an immediate family member without fear of losing their job or health insurance. FMLA defines "family member" as a child, parent, or spouse, specifically "a husband or wife as defined or recognized under state law in the state where the employee resides."
Enter DOMA, which forbade the federal government from recognizing same-sex marriages performed in the states. Some states (California, New Jersey, Maine, Wisconsin and Colorado, to name a few) have changed their state FMLA laws to include civil unions or domestic partners, but most have not.
As we say goodbye (and good riddance) to DOMA, we also say goodbye to exclusion from FMLA in the 13 states and the District of Columbia, which recognize marriage equality. Same-sex partners in those places who are eligible for FMLA can now use the law to take care of each other in times of serious illness. Marriage equality states include California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington, plus D.C.
Same-sex partners everywhere who are covered by FMLA but lack a biological or legal relationship to their child may already use the law to care for a newborn or seriously ill child. The Department of Labor clarified in 2010 that same-sex partners are included in the definition of "in loco parentis" -- those who provide "day-to-day care or financial support ... where the employee intends to assume the responsibilities of a parent with regard to a child."
The June 26 court decision didn't solve all problems for same-sex couples and FMLA. Right now, the definition of "spouse" applies to employee's "place of domicile" (state of primary residence) rather than the "place of celebration" of the marriage. If two women or two men marry in Iowa, which recognizes same-sex marriages, but live in Georgia, which does not, the law doesn't require their employers to allow them to use FMLA if one needs to care for the other. (Remember, employers may always be more generous than the law.)
Groups are working to change that regulation so that any legally married same-sex couple can use FMLA, regardless of where they reside.
Also, under FMLA, employers can require spouses who work for the same company to share the 12 weeks of leave. That's another area of the law that needs to change -- along with broadening the definition of family, removing part-time hours restrictions, covering all employers, and making the leave affordable. LGBT groups are key partners in Family Values @ Work coalitions working to make those changes.
Happily, some HR experts are advising those who administer the FMLA to honor same-sex partnerships.
Until we fix the FMLA or ensure marriage equality throughout the entire country, that's the smart and the right thing to do.
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