EMPLOYMENT LAW NEWS: Effect of DOMA’s demise on FMLA application
By Anne-Marie L. Storey, Esq.
As you no doubt have seen in the news, the US Supreme Court issued a ruling on June 26 that struck down the federal Defense of Marriage Act (DOMA). This action has many consequences for employers, one of which pertains to the FMLA and its application.
The federal FMLA defines spouse as “a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized”. Thus, the effect of the Supreme Court’s ruling is that a “spouse” as defined by the federal FMLA will include a same-sex spouse if that person is defined as a “spouse” under state law. Since Maine is one of the states that has legalized same-sex marriage, same-sex married couples will be considered spouses under federal law.
There are many other issues to consider in terms of the effect of this ruling. Most of you probably know that Maine’s FMLA already recognized a “domestic partner” as a covered individual. When DOMA was in place, an employee could be entitled to up to 10 weeks in a 2 year period for certain leaves related to a domestic partner under state law, but not federal law. Since federal law did not provide the same coverage, an employee could also take up to 12 weeks for another qualifying reason and the two leave periods would not run concurrently. DOMA’s demise will change this effect. Now, if a condition related to a domestic partner under state FMLA is also a covered condition under federal FMLA, the leave would run concurrently, potentially limiting the employee to a total of 12 weeks in a one year period.
Leave related to children of same-sex spouses is also affected. Those children would now be stepchildren of the employee’s partner, so the partner would be entitled to federal FMLA leave for their care. Such coverage was already recognized under Maine law, so, again, this would be a change only for purposes of federal law. Another issue pertains to use of leave when both partners work for the same employer. Federal FMLA limits, with some exceptions, the time that can be taken by spouses who work for the same employer for a birth, placement of a child of adoption or foster care, or to care for a parent with a serious health condition, to a combined total of 12 weeks of FMLA. These limitations will now be applicable to same-sex spouses as well. In addition, there are certainly other unresolved questions about the effects of this decision. For instance, suppose a Maine employer has a branch in a state that does not recognize the same-sex marriage; is an employee who works at that other location, even temporarily, still entitled to federal leave time?
Employers are now going to tasked with interpreting these and other issues as they pertain to leave rights under federal FMLA and interaction with state FMLA. Policies and other notifications will have to be reworked to recognize these changes and HR personnel/supervisors should be informed so that they are sure to apply the laws correctly. Rudman Winchell’s Employment Team will plan to present more information and discussion of this topic and other FMLA changes/updates during its Annual Employment Seminar, which will take place on November 1, 2013. Watch these updates for additional information about this topic and the seminar in general.
These materials have been prepared by Rudman Winchell for educational purposes only. They should not be considered legal advice. The transmission of this information to you is not intended to create a lawyer-client relationship. Readers should not act upon this information without seeking professional counsel. You should not send any confidential or private information to Rudman Winchell until a formal attorney-client relationship has been established, in writing.
For more information please contact Anne-Marie Storey at firstname.lastname@example.org