Same-Sex Spouses Now Protected Under FMLA (But Not Civil Unions)

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Starting March 27, 2015, the Family and Medical Leave Act covers you for leave related to caring for your same-sex spouse, no matter what state you married in and whether your home state acknowledges the marriage. The Department of Labor has modified its regulations to redefine spouse to cover all same-sex marriages.

Here's what you need to know about FMLA and the redefinition of "spouse" by the DOL:What is FMLA?: The Family and Medical Leave Act says you get up to 12 weeks of leave to care for yourself or an immediate family member, including a spouse, if they or you have a serious medical condition. The law applies if you've worked at least a year, your employer has at least 50 employees within 75 miles of your work location, and you've worked at least 1250 hours in the past 12 months. The leave can be continuous or intermittent. Intermittent leave is handy if you need to take your spouse to doctor's appointments or medical treatments. If you are covered, you can't be fired for missing work and must be restored to the same or an equivalent position when you return from your leave.

Spouse redefined: For many years, "spouse" only applied to same-sex spouses. That changed when gay marriage hit the scene, and it was redefined as being a spouse legally recognized in the state where you reside. This is a problem if you're on one of the last few states that doesn't recognize same-sex marriage. The new rule says employers have to cover any spouse if the marriage was legal in the state where the marriage occurred. Here's what the DOL says about the rule change:
  • The Final Rule changes the regulatory definition of spouse in 29 CFR §§ 825.102 and 825.122(b) to look to the law of the place in which the marriage was entered into, as opposed to the law of the state in which the employee resides. A place of celebration rule allows all legally married couples, whether opposite-sex or same-sex, or married under common law, to have consistent federal family leave rights regardless of where they live.
  • The Final Rule's definition of spouse expressly includes individuals in lawfully recognized same-sex and common law marriages and marriages that were validly entered into outside of the United States if they could have been entered into in at least one state.
No civil unions: While all marriages, same-sex or traditional, common law or licensed, are now recognized as covered under FMLA, civil unions are not. Whether between a man and a woman or between same sex partners, civil union partners cannot take covered FMLA leave to care for their partner.

This rule change is probably good for employers as well as employees. Now employers don't have to be legal experts to determine whether or not the state of residence recognizes the marriage. It's certainly good for employees who are legally married but who weren't previously covered.

If you have a same-sex spouse who has a serious medical condition, you can now safely put in for FMLA leave to care for them.

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If you need legal advice, it's best to talk to an employment lawyer in your state, but if you have general legal issues you want me to discuss publicly here, whether about discrimination, working conditions, employment contracts, medical leave, or other employment law issues, you can ask me at AOL Jobs.

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