Beginning on March 27, 2015, a big change in the Family and Medical Leave Act (the “FMLA”) will protect Ohio employees in same-sex marriages for the first time. On that day, a new regulation issued by the Department of Labor in the wake of the U.S. Supreme Court’s decision in United States v. Windsor will change the FMLA definition of “spouse” to include lawfully married same-sex spouses. As a result, Ohio employees in same-sex marriages entered into in other States will finally be afforded the same protections granted to other married couples under the FMLA.
Background on the FMLA
The FMLA is a critical protection for employees when either they or a loved one get sick. Found at 29 U.S.C. § 2601, it entitles eligible employees of many (but not all) employers to take unpaid job-protected leave for up to twelve weeks in a particular twelve month period when necessary due to any of the following reasons:
- When the employee is unable to work due to the employee’s own serious health condition;
- To care for the employee’s spouse, parent, son, or daughter with a serious health condition;
- For the birth of the employee’s son or daughter and to care for the newborn child;
- For the placement of a son or daughter with the employee for adoption or foster care; or
- For any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty.
The most common reasons employees take FMLA are the first two listed: for the employee’s own serious health condition, or to care for a spouse, parent, or child with a serious health condition.
Until recently, the regulations implementing the FMLA have defined “spouse” to mean “a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides. . . .” 29 C.F.R. § 825.102. Because Ohio does not recognize same-sex marriages regardless of where the marriage was officiated, Ohio employees in same-sex marriages have historically been unprotected by the spousal care provisions of the FMLA. Until recently, that was also true for same-sex couples in every State.
The Defense of Marriage Act and United States v. Windsor
In 1996, Congress enacted the Defense of Marriage Act, or “DOMA.” Section 3 of DOMA limited the definition of “spouse” throughout federal law to mean only persons of the opposite sex, thereby excluding all same-sex couples from any federal benefits of marriage provided to other married couples. The effect of DOMA under the FMLA was to prevent married same-sex couples from using protected leave to care for a spouse with a serious health condition, even if lawfully married in the State in which they live.
However, as I have previously written about here, in the landmark 2013 decision United States v. Windsor, the Supreme Court struck down the provision of the Defense of Marriage Act that defined spouse to include only opposite-sex marriages for purposes of federal law.
Almost immediately, the Department of Labor’s interpretation of the FMLA changed. Shortly after the Windsor decision, the Department announced that employees in same-sex marriages would be protected by the FMLA’s spousal care provision, as long as they lived in a State that recognizes same-sex marriages. Of course that did nothing to protect Ohio employees in same-sex marriages. The new Department of Labor regulation removes this remaining restriction.
The FMLA Will now Protect Same-Sex Spouses
The new regulation about to take effect changes the FMLA’s definition of spouse. Now, the term will be defined based on the law in the State where the ceremony took place, rather than the State where the employee lives. Put differently, the FMLA definition of spouse now includes spouses of the same sex, as long as the marriage ceremony occurred in a State that recognizes same-sex marriage.
According to the Department of Labor, the change is designed “to ensure that all legally married couples, whether opposite-sex or same-sex, will have consistent federal family leave rights regardless of where they live.” As a result of this important change, Ohio employees in same-sex marriages can take FMLA leave to care for a spouse of the same sex, provided that they were married in a State that has marriage equality.
But the entire story has not yet unfolded. The Supreme Court is likely to resolve the issue of marriage equality in June of this year. Depending on how the Supreme Court rules in these upcoming cases, the FMLA’s new definition of spouse will either be moot, or very important.
If the Court strikes down bans on marriage equality, Ohio will begin recognizing same-sex marriages. Otherwise-eligible employees who enter into same-sex marriages will become entitled to the protections of the FMLA’s spousal care provision once married, whether they get married in Ohio or elsewhere. On the other hand, if the Supreme Court does not strike down the marriage equality bans, then same-sex couples in Ohio will receive the benefits of the new FMLA definition only if they were married in a State that recognizes their marriage as lawful.
No matter how the upcoming marriage equality cases come out, Ohio employees in same-sex marriages now have protections under the FMLA that have long been denied to them: the right to medical leave to care for a sick spouse.
Protect Your Rights to Medical Leave
If you, a spouse, or any other family member were denied medical leave at work, or were discriminated against for trying to take medical leave to care for a family member, the employer may have violated the FMLA or other employment discrimination laws. To find out whether your rights have been violated, and what you can do about it, contact the Cleveland employment discrimination attorneys at Bolek Besser Glesius LLC.
Leave a Reply